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Lawyers frequently call the Practice Advisors’ Office to discuss the ethics of communicating with the court. They are concerned that another party has brought an ex parte application, or has written to the court without notice to them. Sometimes lawyers want to take steps or obtain a remedy without giving notice to the opposing party.
Parties have a right to make submissions if the court is making a ruling that affects their rights. The Code of Conduct states that lawyers must not communicate with the court unless the other parties or their counsel are present or have had reasonable prior notice (Rule 5.1-1).
Ex parte applications and communications should occur only in exceptional cases. If a lawyer is considering an ex parte application, the lawyer should first decide if it is necessary. If so, is it possible to let the opposing party know? In some cases, ex parte applications are necessary to protect clients’ rights. Mareva injunctions and Anton Piller orders are typical examples. There is often urgency involved, and providing notice to the other party would prejudice the client’s ability to obtain a remedy.
If an ex parte application is necessary, the lawyer must present accurate and candid details to ensure the court is not misled. The lawyer must disclose all material facts, even those that may be adverse to the client’s position. Lawyers should clearly explain their reasons for proceeding without notice, or why the other party is absent.
Applications to the court are not the only means of communicating with judges, and lawyers often send correspondence to the courts for a variety of reasons. It is improper to communicate unilaterally with the court to gain a strategic or tactical advantage. Former Practice Advisor Barry Vogel interpreted the communication rules in the strongest terms: “[It] is improper, without notice, to contact the judge by telephone, even to arrange an appointment. It is improper, without notice, to write a letter to a judge no matter what the subject.” (Ethically Speaking, April 1997.)
In 2005, Practice Advisor Nancy Carruthers wrote: “if seeking dates for a case management meeting with the judge, it is appropriate to advise other counsel before starting to canvass for dates. If the lawyer cannot get agreement to do so, a notice of motion should be issued…”
Nothing has changed. In Shehu v. Iqbal, 2017 ABCA 438, the court commented that “… opposing counsel must be copied with all correspondence with the court.” The Court of King’s Bench website includes a note stating the court “will not respond in substance to any communications that are not copied to counsel… opposite”. (https://Alberta courts.ca/QB/resources/media.)
Lawyers should send copies of letters or emails to opposing counsel and obtain consent from the opposing counsel before sending them to a judge. Indicate when the communication will be sent and how opposing counsel may respond. If opposing counsel has contacted the court without notifying you first, you may alert the court but do not address the substance of the issue. Instead, seek an opportunity for both parties to appear before the judge to make submissions.
Exceptional circumstances can arise, and lawyers often fail to see the pitfalls of sending a letter or submission to a judge or court staff. Consider the following examples:
- When the court has invited the parties to send a letter: assume opposing counsel needs to be included. Limit the response to the issues identified by the court. Do not stray into matters of substance or seek an order that was not contemplated.
- When written submissions are requested by the court: determine whether submissions should be exchanged with the opposing party before sending them to the court. It may be sufficient to forward your submissions to the court if the opposing party has a chance to respond.
- Routine administrative matters: it may be necessary to set or confirm hearing dates, or to seek a correction to an order. When contacting the court, do not discuss matters of substance, the conduct of opposing counsel or the merits of the case. Always provide a copy of your communication to the opposing party.
- When the communication is authorized or permitted by law: even if procedural rules appear to allow a lawyer to take a step without notice, consider giving notice. For example, the Rules of Court appear to permit a lawyer to apply for case management and merely serve notice on the opposing parties. It is a best practice for the lawyers to reach agreement in advance or ensure there is an opportunity for other parties to communicate their positions.
It may be challenging to follow these recommendations when dealing with self-represented parties, especially when they are not aware of procedural rules or practices. For example, a self-represented party may not be prepared to consent to the contents of a letter you wish to send to a judge or may be unaware that it is inappropriate to write directly to a judge without notice to you. If you communicate with the court, you should advise the judge if the opposing self-represented party has been copied with the correspondence, but has not seen it in advance, and whether the self-represented party is expected to respond. If you are encountering difficulties, you may wish to seek court direction to manage communications with the judge.
Written by: Ross McLeod, QC, Practice Advisor