When a judge asks the winning lawyer to draft the final decree or judgment, must that lawyer send opposing counsel a copy of the proposed draft?

Plain-English summary

The Commission was asked whether, when a judge asks the prevailing attorney to prepare a final decree or judgment, that attorney must give opposing counsel a copy of the draft so opposing counsel can object and ask to be heard. The Commission answered yes.

Maine Bar Rule 3.7(h)(2) prohibits addressing a written communication to a judge about the merits of a contested matter pending before that judge without furnishing opposing counsel a copy. The Commission noted this provision is substantially identical to DR 7-110(B) of the ABA Code of Professional Responsibility, and that the Reporter's Notes show no substantive change was intended by the Maine revision. Two subsidiary questions followed: whether submitting the proposed judgment is a "communication," and whether, after findings issue, the action is still a "contested matter pending." The Commission answered both yes. Although the judge invited the submission, the proposed decree is a request to the court to enter judgment in that form, so it is a communication. The matter remains pending in almost any case where the relief sought is more complex than computing a single number; any result that is the fruit of a contested hearing stays contested until the details of relief are finalized. Even in a simple property-damage tort case, the apportionment of damages may affect insurance coverage or subrogation rights, and in actions for equitable or declaratory relief the scope of relief may matter more than who nominally prevails.

The Commission added that, even if a judge who delegates the drafting hopes to avoid further disputes over the terms of the order, the judge can always retain the drafting; in most cases, the opportunity for opposing counsel to review and object gives the court its best assurance that the decree reflects the court's intent. The obligation to send opposing counsel a copy of such a proposed decree, the Commission stated, should be as fundamental as submitting a copy of a brief.

Currency note

This opinion was issued in 1983, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: If the judge asks me to draft the final order, do I have to send opposing counsel a copy?

A: The opinion concluded yes. The proposed decree is a written communication to the judge about a pending contested matter, so Rule 3.7(h)(2) requires furnishing opposing counsel a copy.

Q: Is the case still 'contested' once the judge has issued findings and asked for a draft decree?

A: The opinion concluded yes. A result that is the fruit of a contested hearing remains contested until the details of relief are finalized, which can affect matters like insurance coverage, subrogation, or the scope of equitable relief.

Q: Does the judge's invitation to submit the draft change the analysis?

A: No. The opinion explained that even though the judge invited it, the submission is a request to the court to enter judgment in that form, and so is a communication subject to the copy requirement.

Background and rules framework

The opinion interprets Maine Bar Rule 3.7(h)(2), which prohibits a written communication to a judge about the merits of a contested matter pending before that judge without furnishing opposing counsel a copy. The Commission identified the rule as substantially identical to DR 7-110(B) of the ABA Code of Professional Responsibility, with no substantive change intended. The provision corresponds to Model Rule 3.5 (impartiality of the tribunal and the bar on improper ex parte communications with a judge).

Citations and references

Rules of Professional Conduct:

• Model Rule 3.5 (impartiality of tribunal; ex parte communications)
• Maine Bar Rule 3.7(h)(2)
• ABA Code of Professional Responsibility DR 7-110(B) (identified as the source provision)

See also

• ISBA Ethics Op. 94-07: Drafting an Order Ex Parte
• OH BPC Op. 2022-012: Prosecutor Judgment Entries
• ISBA Ethics Op. 93-12: Ex Parte Emergency Relief

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89661

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: January 17, 1983

Question

Where a judge in a litigated case requests the prevailing attorney to prepare a final decree or judgment, does the prevailing attorney have an obligation to give a copy of his draft proposal to opposing counsel, so that opposing counsel may have an opportunity to object and ask to be heard?

Answer

Yes.

Discussion

Maine Bar Rule 3.7(h)(2) prohibits the addressing of a "written communication to a judge . . . concerning the merits of a contested matter pending before such judge. . . without furnishing opposing counsel a copy thereof . . ." This is a revision substantially identical to the provisions of DR 7-110(B) of the ABA Code of Professional Responsibility. It is clear from the Reporter's Notes that no substantive change was interceded by the Maine revision. Two subsidiary questions raised by the inquiry are whether the submission of the judgment was a "communication" and, whether, after issuance of findings, the action was still a "contested matter pending" before the Judge. Both of these questions are answered in the affirmative. Clearly, although the Judge has invited the submission of the decree, the submission of the proposed decree is a request to the Court to enter judgment in that format. The matter is still "pending" in almost any case where the nature of relief sought is more complex than the mere computation of a number. Any matter where the result is the fruit of a contested hearing must still be considered to be contested until the details of the relief have been finalized. Even in a simple property-damage tort case, the apportionment of damages to the loss may have an impact on insurance coverage or subrogation rights. In any action wherein equitable or declaratory relief is sought the scope of the relief may be more significant in determining who the winner is than whether the Plaintiff nominally obtains a judgment.

Although it may be argued that on occasion a Judge who delegates the drafting of the relief to one party is motivated, in part, by a desire to avoid further nitpicking over the terms of the order, the Judge can always retain responsibility for the drafting of the order. In most instances, the chance to review and comment or object to the proposed decree offers the best opportunity for the Court to make certain that the decree reflects the Court's intent and effectively accomplishes the result desired by the Judge. The obligation to submit a copy of such a proposed decree to opposing counsel should be as fundamental as submitting a copy of a brief.