Ex Parte Communications

1
Ex Parte Communications

• Gladys Smith-Mangan and JJ Partlow

2
Rule 4-3.5

• If an attorney sends a letter to a judge, can it
  be considered ex parte communication, even if it
  is copied to the opposing attorney/party?

• No. Written communications copied to the
  opposing attorney/party are expressly excluded as
  ex parte communications under the Rules
  Regulating the Florida Bar.

3
Rule 4-3.5

• Rules Regulating the Florida Bar
• Rule 4-3.5
•  
• (a) Influencing Decision Maker.
•  
• A lawyer shall not seek to influence a judge,
  juror, prospective juror, or other decision maker
  except as permitted by law or the rules of court.
•  
• (b) Communication with Judge or Official.
•  
• In an adversary proceeding a lawyer shall not
  communicate or cause another to communicate as to
  the merits of the cause with a judge or an
  official before whom the proceeding is pending
  except
• In the course of the official proceeding in the
  cause
• In writing if the lawyer promptly delivers a copy
  of the writing to the opposing counsel or to the
  adverse party if not represented by a lawyer
• Orally upon notice to opposing counsel or to the
  adverse party if not represented by a lawyer or
• As otherwise authorized by law.

4
Rule 4-3.5

• If an attorney communicates orally to a judge
  regarding the merits of the case, is this
  considered ex parte communication?

• No. Oral communications, upon notice to opposing
  counsel or to the adverse party if not
  represented by a lawyer, are expressly excluded
  as ex parte communications by the Rules
  Regulating the Florida Bar.

5
Rule 4-3.5

• Rule 4-3.5
•  
• (a) Influencing Decision Maker.
•  
• A lawyer shall not seek to influence a judge,
  juror, prospective juror, or other decision maker
  except as permitted by law or the rules of court.
•  
• (b) Communication with Judge or Official.
•  
• In an adversary proceeding a lawyer shall not
  communicate or cause another to communicate as to
  the merits of the cause with a judge or an
  official before whom the proceeding is pending
  except
• In the course of the official proceeding in the
  cause
• In writing if the lawyer promptly delivers a copy
  of the writing to the opposing counsel or to the
  adverse party if not represented by a lawyer
• Orally upon notice to opposing counsel or to the
  adverse party if not represented by a lawyer or
• As otherwise authorized by law.

6
Judicial Canon 3(B)(7)(a)

• May a judge, magistrate or hearing officer
  contact the parties separately to schedule a
  hearing?

• Yes. If circumstances require, the judge
  reasonably believes no party will gain a
  procedural or tactical advantage as a result of
  the communication, and the judge makes promptly
  notifies the other parties of the substance of
  the communication, allowing them an opportunity
  to respond.

7
Judicial Canon 3(B)(7)(a)

• (B)(7)(a) Where circumstances require, ex parte
  communications for scheduling, administrative
  purposes, or emergencies that do not deal with
  substantive matters or issues on the merits are
  authorized, provided
•  
• The Judge reasonably believes that no party will
  gain a procedural or tactical advantage as a
  result of the ex parte communication, and
• The judge makes provision promptly to notify all
  other parties of the substance of the ex parte
  communication and allows an opportunity to
  respond.

8
Pro Se Motions

• Can a party file a motion in his/her own case, if
  he is represented by counsel, or can a family
  member file one on his/her behalf?

• Answer No. The 5th DCA upheld a trial courts
  ruling that once a person requests counsel, he
  waives his right to self-representation. He does
  not have the right to be represented for some
  purposes, and unrepresented for other purposes
•  
• Salser v. State, 582 So.2d 12 (Fla. 5th DCA 1991)
  

9
Pro Se Motions

• Can said family member be held criminally liable
  for filing a motion on behalf of a party
  regarding the merits of a case?

• Yes. Judge Robert E. Belanger, of the 19th
  Judicial Circuit in and for Okeechobee entered a
  standing order holding that
•  
• A motion filed by a party who is represented by
  counsel is invalid, and that a motion filed by a
  lay person who is not a party to the suit may
  constitute the unauthorized practice of law,
  which is a Third Degree Felony, prohibited by
  Florida Statute 454.23.
•  
• Nineteenth Circuit in and for Okeechobee, by
  Robert E. Belanger, Circuit Judge, citing to JEAC
  Opinion 99-19 (August 25, 1999).
•  
• (See copy of order, distributed on tables.)