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Ethics Opinion #24
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Whether it is proper for an attorney to send a letter to the court before
appearing in an action, notifying the court of the attorney s impending appearance, and further requesting an
adjournment of the matter without contacting opposing counsel.
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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 24
September 3, 1998
Mark S. Piazza, Esq.
Jacobi, Seighardt, Bousanti, Barone & Piazza
235 Forest Avenue
Staten Island, New York 10301
Dear Mr. Piazza:
I am in receipt of your inquiry as to whether it is proper for an attorney to send a letter to the court before appearing in an action, notifying the court of the attorney s impending appearance, and further requesting an adjournment of the matter without contacting opposing counsel. You state that the letter, at the bottom thereof indicates “cc: petitioner s attorney or petitioners,” but neither counsel nor petitioner ever received such letter.
Ethical Consideration 7-35 provides:
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“All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which he presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party. For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if he is not represented by a lawyer. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing counsel, or, if there is none, to the opposing party. A lawyer should not condone or lend himself to private importunities by another with a judge or hearing officer on behalf of himself or his client.”
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This admonition is embodied in Disciplinary Rule 7-110(b) which provides:
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“B. 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 official proceedings in the cause.
2. In writing if the lawyer promptly delivers a copy of the writing to
opposing counsel or to an adverse party who is not represented by a lawyer.
3. Orally upon adequate notice to opposing counsel or to an adverse party
an adverse party who is not represented by a lawyer”
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That the lawyer has not yet formally appeared in the action is immaterial, for
under certain circumstances, the letter itself may be considered
as an appearance (see, e.g . Meyer v A & B America Ltd.,
160 AD2d 688 (2d Dept.); Bedard v Najim, 222 AD2d 979
(fn. 1); see also, DeGaray V DeGaray, NYLJ, 6/26/98,
p. 26 col. 4). In any event, the above Disciplinary Rule does
not limit its application to lawyers who have appeared in the
case.
The term “communicate” is broadly interpreted, and can include letters or even trial briefs (New York State Bar Association, Committee on Professional Ethics, Op. # 325).
Consequently, the sending of the letter to the court in and of itself was not improper if a copy was sent to opposing counsel. If sent to a party directly, it would appear to violate the prohibition against communicating with a party the lawyer knows to be represented by counsel (DR 7—104(A)(1)).
You ask if the letter is proper if “the cc: was never received.” The conclusion on this issue depends on the facts. If the lawyer in fact dispatched a copy of the letter to opposing counsel but it was never delivered through no fault of the lawyer (i.e. post office failure), then no impropriety would appear to occur. If, however, the indication of a “cc:” was merely a ploy for the purpose of leading the court or others to believe that a copy was sent to opposing counsel when in fact it was not, then an impropriety would appear to have occurred.
As to your final question as to whether a grievance is “in order,” I simply remind you of the mandate of DR 1-103(A) which requires a lawyer possessing knowledge that raises a question as to another lawyer s honesty or trustworthiness to report same to authorities empowered to investigate or act upon such violations. Whether a Grievance Committee will investigate a complaint of this nature, and if so, to what extent, and whether any formal action will be taken, are questions beyond this writer s control and subject to differing opinions among reasonable persons.
Pursuant to Article VI Section 19 of the R.C.B.A. By-Laws, please be advised that the statements contained herein express the opinion of the Committee alone, and have not been passed upon by the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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