After both parties had completed the presentation of evidence and arguments, Judge Butler took under advisement a case tried in his court without a jury in which Attorney Anderson had represented the plaintiff. The case involved a difficult fact issue of causation and a difficult issue of law. After the case was under advisement for several weeks, Anderson heard rumors that Judge Butler was having difficulty determining the issue of factual causation and was uncertain about the applicable law. Immediately upon hearing these rumors, Anderson telephoned Judge Butler, told the Judge that Anderson would like to reopen the case for additional evidence and briefing by the parties. Thereafter, Judge Butler reopened the case for further testimony and requested briefing from both parties. Was it proper for Anderson to communicate with Judge Butler?
A. Yes, because both parties were given full opportunity to present their views on the issues in the case.
B. Yes, because Attorney Anderson did not make any suggestion as to how Judge Butler should decide the matter.
C. No, because Attorney Anderson communicated with Judge Butler on a pending matter without advising opposing counsel.
D. No, because Attorney Anderson caused Judge Butler to reopen a case that had been taken under advisement.
Answer:C
After both parties had completed the presentation of evidence and arguments, Judge Butler took under advisement a case tried in his court without a jury in which Attorney Anderson had represented the plaintiff. The case involved a difficult fact issue of causation and a difficult issue of law. After the case was under advisement for several weeks, Anderson heard rumors that Judge Butler was having difficulty determining the issue of factual causation and was uncertain about the applicable law. Immediately upon hearing these rumors, Anderson telephoned Judge Butler, told the Judge that Anderson would like to reopen the case for additional evidence and briefing by the parties. Thereafter, Judge Butler reopened the case for further testimony and requested briefing from both parties. Was it proper for Anderson to communicate with Judge Butler?
A. Yes, because both parties were given full opportunity to present their views on the issues in the case. B. Yes, because Attorney Anderson did not make any suggestion as to how Judge Butler should decide the matter. C. No, because Attorney Anderson communicated with Judge Butler on a pending matter without advising opposing counsel. D. No, because Attorney Anderson caused Judge Butler to reopen a case that had been taken under advisement.
Explanation: This is one of the litigation “shall nots”: A lawyer shall not “communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order.” Rule 3.5(b). There are no exceptions to this Rule. Accordingly, A & B are both incorrect. “D” gives the wrong rationale; it doesn’t matter if the ex parte communication has any effect. Accordingly, “C” is correct.