• September 3, 2014

WhisperingRecently, Minnesota Litigator touched on the spotty ethical record of Mr. Marc G. Kurzman. Note that he received an admonition in 1996 “for, on two separate occasions, communicating with a court in writing without delivering a copy of the writing to opposing counsel.” Lawyers call this improper “ex parte” communication.

Meanwhile, in another recent post, I linked to a decision in which sanctioned lawyers found fault with their adversaries for supposedly improper ex parte communications.

In support of their argument that the district court engaged in improper ex parte communications, appellants cite to time records reflecting (1) a paralegal visit to the courthouse to obtain the district court’s signature on the [Order to Show Cause (OSC)] and (2) an attorney’s telephone conversation with the district court’s clerk, requesting an amendment to the OSC. Although the better practice with respect to these requests may have been for counsel to submit letters to the district court, copying all counsel, there is no indication of any improper ex parte communication in connection with the requests. Moreover, appellants identify no prejudice resulting from the communications.

So, what is the deal? When is it ok to call the Court without your adversary on the phone too?

The issue here is not very complicated. The “best practice” would be to exercise extreme caution in any contact with the court outside the presence of opposing counsel. On the other hand, the burden of setting up a telephone conference to address some purely non-controversial administrative issue (“Does the court prefer courtesy copies three-hole punched?”) compared to the risk of improper influence or appearance of impropriety is such a lop-sided comparison that a strict rule makes no sense.

In my experience, nearing 20 years of civil litigation in Minnesota state and federal courts, lawyers have easily navigated the ambiguity.

Notwithstanding a dork here or there, I am happy to say that, in my view, Minnesota litigators generally have a strong sense of proper vs. improper ex parte contacts with court officials. Because of that, Minnesotans generally are not burdened either by onerous and expensive safeguards against improper ex parte communications, on the one hand, or back-room, behind-the-scenes, ex parte injustices on the other hand.

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