Can a lawyer give the judge a memorandum or authorities on the case without telling opposing counsel?

Plain-English summary

The inquiry asked what is proper when a lawyer wants to give the court an outline or memorandum of his position, and whether each communication with the court must be disclosed to opposing counsel. The inquiring lawyer offered an illustration from a divorce case in which he had handed the judge, in the absence of opposing counsel, a citation and the holding of a case he feared the court would not appreciate the relevance of.

The committee answered that the question is controlled by Texas Canon 19 and ABA Canon 22. It concluded there should be no communication with the court without making full disclosure to opposing counsel and according that lawyer an opportunity to be present or to submit authorities. The vote was 8-0.

Currency note

This opinion was issued in 1949, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; communications with a judge are now addressed by ABA Model Rule 3.5 (impartiality and decorum of the tribunal, including the prohibition on ex parte communication), and candor to the court by Model Rule 3.3. Treat this page as historical context, not current guidance.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: Can a lawyer submit a memorandum or authorities to the judge before trial?

A: Under this opinion, only with full disclosure to opposing counsel. The committee held there should be no communication with the court without disclosing it to the other lawyer and giving that lawyer the chance to be present or to submit authorities.

Q: Does it matter that the lawyer thought the authority was clearly correct?

A: No. The committee's rule turned on disclosure and the opportunity for the opponent to respond, not on the strength of the authority the lawyer wished to present.

Background and rules framework

The opinion interprets former Texas Canon 19 and ABA Canon 22 on candor and fairness in communications with the court, applied to a lawyer presenting authorities or argument to a judge outside the opponent's presence. The modern analogs are ABA Model Rule 3.5 (which forbids ex parte communication with a judge during a proceeding except as permitted by law) and Model Rule 3.3 (candor toward the tribunal).

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality of the tribunal; ex parte communication with a judge), as the modern analog
• MR 3.3 (candor toward the tribunal), as the modern analog
• Texas Canon 19, ABA Canon 22

See also

• TX Ethics Op. 26: A Winning Lawyer's Post-Verdict Letter to Jurors
• TX Ethics Op. 33: Withholding a Pregnancy From the Divorce Court

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-22/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_22.pdf

Original opinion text

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

QUESTION PRESENTED

"What is proper on the trial, or in advance of the trial, of a case with respect to giving the court an outline or memorandum of your position? In other words, it is obligatory upon you with respect to each communication with the court to acquaint opposing counsel with what has taken place between you and the court? If so, there will be comparatively few times when you can in advance of the trial of the case be of any assistance to the trial judge by acquainting him with the issues and authorities pertinent to the issue.

Probably the following is an extreme example and no one would question the propriety of the course taken, but it may serve as illustrative of the problem presented by the question: Several years ago I was defending a divorce suit brought by the husband on the grounds of cruel treatment. The Austin Court of Civil Appeals had held that adultery after separating is a bar to a suit for divorce on the grounds of cruel treatment. I had some reason to believe that the plaintiff would admit having had intercourse with another woman subsequent to the separation from his wife, but I was afraid the court would not appreciate the relevance of the testimony sought to be introduced, and that if I had to take time to argue its relevancy the question might as well never be asked. I gave the court in the absence of counsel for the plaintiff the citation to the case, and noted what the case held.

If it is proper to submit a memorandum to the court what should ordinarily then be the court's position?"

18 Baylor L. Rev. 205 (1966)

CANDOR AND FAIRNESS - COMMUNICATIONS WITH THE COURT
An attorney may not communicate with the court without making a full disclosure to opposing counsel and according him an opportunity to be present, or to submit authorities.

Canon 19. A.B.A. Canon 22.

The foregoing question is controlled by Texas Canon 19, and American Bar Canon 22. The committee is of the opinion that there should be no communication with the Court without making a full disclosure to opposing counsel and according him an opportunity to be present, or to submit authorities. (8-0)

Tex. Comm. On Professional Ethics, Op. 22 (1949)