A lot of lawyers seem to think that sending a letter to a judge is OK if they also include all counsel on the communication. I have to say, I never understood the idea that what was prohibited would become acceptable as long as the other side was aware you were breaking the rule. When asked to bless this conduct, I invariably told inquiring lawyers that in my opinion, all you were doing by copying other counsel on ex parte letters was confessing to them that you had broken a rule. The usual response was, “This is done all the time.” I guess that makes it OK.
Judges seem to have a different opinion. When prosecuting ethics cases, I got an occasional complaint from a judge who was upset that a lawyer had sent her or him a letter. Judges live in a fish bowl, and the Code of Judicial Conduct pretty strictly limits their ex parte contact with parties. My experience is that they don’t like getting ex parte letters, even if the other side is included or copied. A recent case confirms this.
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