1 / 9

Ex Parte Communications

Ex Parte Communications. Gladys Smith- Mangan and JJ Partlow. 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?.

reia
Download Presentation

Ex Parte Communications

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  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 court’s 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.)

More Related