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The Indiana Supreme Court Disciplinary Commission released an advisory opinion on how attorneys can avoid improper ex parte communications while protecting their clients’ interest.
An ex parte communication is a direct or indirect communication about a case without the knowledge or consent of all parties involved.
The commission wrote that an attorney acting on a client’s behalf when trying to engage in ex parte communications with a judicial officer regarding time-sensitive issues involving child custody and visitation can avoid an ethical violation by adhering to the mandates of Trial Rule 65(B).
The conditions of the trial rule include specific facts shown by affidavit that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party can be looped in. Additionally, a certification from the attorney to the court should show what efforts, if any, have been made to give notice and provide specific reasons for why notice to the opposing party should not be required.
“A practitioner who files an ex parte pleading asking for relief without a hearing and which does not include the above two items likely violates Rule 3.5(b). Likewise, any judge granting such relief without a hearing likely violates Judicial Conduct Rule 2.9,” the commission wrote.
The advisory opinion provides six hypothetical scenarios as examples of ex parte communications.
“To preserve the substantive and procedural rights of parties to be heard, the filing of emergency ex parte petitions should be limited to the most extraordinary of circumstances for which irreparable injury, loss, or damage would occur without immediate relief. Instead, efforts should be directed at communication among parties and if impossible, among their lawyers, to sort out issues that do not amount to these rare exigent circumstances,” the commission wrote.
This is the commission’s second advisory opinion this year.
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