Florida attorney conduct is governed by the Rules Regulating The Florida Bar (trivia note: the name includes "the" so that is capitalized). It is a topic studied by thousands each year in preparation for undertaking the Bar examination, and then read or referred to sporadically in the day-to-day of professional life. Admittedly, most lawyers do not regularly study nor consider the Rules.
I periodically have lawyers express surprise that "ex parte" communication with judges is not addressed in the Rules in Florida. And, there is seemingly a fair amount of confusion about ex parte (ex par-tay) communication. The Wex Legal Dictionary provides a detailed definition, which includes two main ex parte concerns, one a matter of legal ethics and the other a matter of civil procedure, the process by which civil cases are processed.
The first, concerned with legal ethics, is:
ex parte refers to improper contact with a party or a judge. Ethical rules forbid (with some exceptions) a lawyer from contacting the judge or the opposing party without the other party's lawyer also being present. A breach of these rules is referred to as improper ex parte contactThe dictionary addresses the second procedure aspect as:
motions for orders that can be granted without waiting for a response from the other side. Generally, these are orders that are only in place until further hearings can be held
The second, "procedural" aspect is also addressed, mentioning ex parte, by the Rules Regulating The Florida Bar, in Rule 4-3.3 Candor Toward the Tribunal. That rule generally requires honesty, stating a lawyer shall not "knowingly" "make a false statement of fact or law to a tribunal." But, when a proceeding is "ex parte," the Rules place an additional onus on the attorney, requiring
In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Rule 4-3.3(c).
However, the Rules Regulating The Florida Bar do not seemingly address as "ex parte" the first aspect, the "improper ex parte contact," the prohibition on "contacting the judge or the opposing party without the other party's lawyer also being present." However, the Rules do address such communication with the judge in a broader context in Rule 4-3.5 Impartiality and Decorum of the Tribunal:
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(1) in the course of the official proceeding in the cause;(2) 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;(3) orally upon notice to opposing counsel or to the adverse party if not represented by a lawyer; or
(4) as otherwise authorized by law.
Thus, though Rule 4-3.5 does not use the term "ex parte," the rule prohibits such communication with a judge regarding a proceeding unless it is in a proceeding (at which all parties are present or were at least notified to be present) or if the opposing party(ies) or counsel are made aware [(3) "upon notice," or (2) "delivers a copy."]
The prohibition on ex parte communication is a burden on the attorneys in any "adversary proceeding." But, the judge is similarly prohibited. The activities of judges are further governed by the Code of Judicial Conduct. This judicially created set of parameters guides the adjudicator in many jurisdictions, though each jurisdiction may be distinct from others in any number of ways.
The Florida Code, Canon 3, provides
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(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:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. (Emphasis added).
This judicial prohibition is broad, "A judge shall not initiate, permit, or consider ex parte communications." An ex parte communication received by a judge can be considered, however, under (a)(ii) if the "judge makes provision promptly to notify all other parties." Thus, a cure for improper ex parte communication (intended or inadvertent) is generally to notify the other parties of that communication.
This communication is a cure for the prejudice that is potentially affected by the communication in the first instance. The prohibition is rooted in the adversarial nature of the American justice system. The prohibition is rooted in the Constitutional guarantees of "due process," which in a procedural sense means essentially "notice" (that proceedings not occur without a party knowing) and "opportunity to be heard" (that before one's rights or property are impaired the judge will listen to that person's viewpoints, arguments, and positions).
When an attorney or an unrepresented party to any "adversary proceeding" communicates with "a judge," that communication should be promptly copied or communicated to the other parties in a case. This is required of attorneys in Rule 4-3.5. Certainly, there may be some argument when communicating with "a" judge as opposed to "the" judge. The Rule specifically states "before whom the proceeding is pending." That is discussed further below.
While non-lawyers are not governed by the Rules Regulating The Florida Bar, the same advice is sound for them also. While such an unrepresented party might not violate any ethical rule with ex-parte communication, it is nonetheless inappropriate considering the underlying due process concerns. When a party communicates with a judge, a copy of that should also be provided to all other parties or counsel.
When a judge receives such an ex parte communication, from a party or counsel, the best course of action would be re-communicating that to all parties or counsel involved in that "adversary proceeding." That re-communication is the best available tool to alleviate or ameliorate any prejudice that might flow from the ex-parte communication. At a minimum, that re-communication will put everyone involved on notice of the existence and substance of the communication.
This Office cannot take sides in a dispute, or provide counsel or advice. However, there are often instances in which this Office can be of assistance to parties and attorneys. That is, in a general sense. This Office can explain how to e-file, and can direct attention to resources on the OJCC website or otherwise. A great resource for such questions is the OJCC clerk's office, which can be reached by emailing AskOJCC@doah.state.fl.us.
Certainly, no one at the Office of Judges of Compensation Claims can provide legal advice regarding either the interpretation or application of the law or rules. Not only is it inappropriate for a judge or staff to provide legal advice or "advisory opinions," it is inappropriate for parties, lawyers, or their staff to even ask for such opinions. Unfortunately, such requests nonetheless are made often.
Lawyers or staff will call staff in a district office and request advice. Often this follows the receipt of an order or notice, and the question is "What do I do now?" The answer to the question is usually simple "follow the notice or order." The caller's inquiry, however, is driven by some conflict, an inability or unwillingness to comply with the notice or order (August 2017). These calls often include entreaties, explanations of conflicts, and all-too-often frustration.
Thought the simple answer "follow the notice or order," is obvious, there is another answer that is perhaps less frustrating. When the "adversary proceeding" is in Florida workers' compensation, the other answer is likely a motion (November 2016). This is set out in Rule 60Q6.115(1) which states
Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested. The judge may treat any request for relief from an unrepresented party as a motion. (Emphasis added).
This is very broad. It applies to any request for "relief." That is, some outcome that is different from what is stated in that notice or order that has been received. That is, some outcome that is different from any other current situation in the "adversary proceeding." That is, when unhappy or dissatisfied with the way things are, or the direction in which things are headed, seek relief. That is, file a motion, and describe "the relief requested" (tell the judge what direction you prefer instead, and explain why).
There are times (as mentioned above) when parties and attorneys decide to contact me directly regarding their issues, concerns, and questions. When those are general questions, when information on the process is sought, then it may be appropriate to send me an email. I do my best to reply to such emails with information about our e-filing process, and how the technology can be of assistance, and I always welcome suggestions on improving our agency and tools.
But, sometimes those communications are case-specific, and inappropriately seek (seemingly at least) advice that is "what do I do now?" as in "in this case," and "at this moment," and that strays dangerously into legal advice. I can no more answer that question than any of the OJCC staff can. Similarly, when the inquiry becomes specific, about a particular case or filing, it may seem (at least) to be ex parte. Although I may not be "the" judge in a particular case, I am ever cautious that I am nevertheless "a" judge. As such, when I receive an inquiry that is case-specific, I may conclude that it is too specific to be addressed ex parte.
In those instances, consistent with the Florida Code of Judicial Conduct, I often reply by providing a copy to the sender and the other parties or attorneys involved. I have had questions regarding this. I have had attorneys explain to me my misunderstandings and misinterpretations, contending their communications to be appropriate and not ex parte. Some have even contended my re-communication breaches their confidence.
But, they must remember that they are obliged to follow the Rules Regulating The Florida Bar, subject to their interpretation, while I must follow the Code of Judicial Conduct subject to mine. In that regard, I may conclude that re-communication to all involved in an "adversary proceeding" is either appropriate or necessary. In doing so, I am not breaching any confidence or trust. When attorneys communicate with me, they must understand that my obligations and interpretations in such regard may simply be different from theirs.
In this analysis of whether to communicate with the judge and whether to copy the opposing parties, one might ask (1) "is this something necessary and appropriate to communicate to a judge?" And, (2) "is there some reason not to provide copies of this communication to the other parties or counsel?" It seems that perhaps when the answer to question one is "yes," the answer to question two is most likely "no." If the answer to question two is "yes," one might be encouraged to reanalyze that conclusion as thoroughly as possible. What interest would secrecy serve?
If the repeated analysis of question two persistently leads to the outcome "yes," this might suggest that one might want to carefully reconsider question one. If it is appropriate and necessary to communicate to a judge, what purpose would be served by not communicating it also to the other parties in the "adversary proceeding?" If it is appropriate to communicate it to a judge, what justification is there for not sharing it with all parties involved?
