Concept art for sending emails - a bunch of email icons going into a laptop while disembodied hand in suit presses button

Chris McDonough Co-Authors New York Law Journal Article About Email and Ex Parte Communications

As more and more of the legal industry goes virtual, lawyers need to be more careful about their communications with the court. An email to the judge or any court personnel could violate the Rules of Professional Conduct (RPC), which prohibit “ex parte communications,” or communications made outside of the presence of the other parties or their lawyers.

Emails Are an Official Part of Conducting Business

Although emails seem informal or “loose,” they are part of conducting business in the virtual age. While a lawyer may think more carefully before drafting a letter to the judge or presenting an oral argument in court, the same lawyer could expose themselves to ethical problems if they choose to send a quick email to any courtroom personnel.

Ex parte communication of any kind can cause court orders to be overturned and lead to disciplinary action for attorneys. As such, lawyers should be extremely aware of how they use email and all other methods of communication with the court.

Case Studies

In his co-authored article in the New York Law Journal (opens a new window – digital membership required), Chris McDonough discusses legal lessons from the COVID-19 pandemic and includes several historical examples of attorneys inadvertently breaking the RPC via email and ex parte communications. For example, in Coleman v. Coleman, 61 A.D.2d 757 (1st Dep’t 1978), the Appellate Division reversed a temporary support order because of improper ex parte communication from the plaintiff. Similarly, an attorney in Matter of Steinberg, 167 A.D.3d 206 (1st Dep’t 2018), was suspended for professional misconduct after emailing a judge and stating: “I would respectfully suggest that the only proper course should be for you to recuse yourself.” As this case demonstrates, email is not the appropriate avenue for these kinds of requests.

During a case, attorneys should not email the judge, nor any other courtroom staff unless the communication adheres to the RPC, and the legal team provides opposing counsel with a timely copy of the communication. In the Matter of Winiarsky, 104 A.D.3d 1 (1st Dep’t 2012), an attorney was disciplined with a public censure for offering a court attorney an employment position via email.

Always Err on the Side of Formality

As a general rule, attorneys should not send any emails that they would not feel comfortable reading aloud in front of the court and opposing counsel, and if lawyers need to email the court for any reason, they should include a representative from opposing counsel. Providing the other parties with a hard copy of an email may still result in a period of ex parte communications, as emails are faster than standard mail.

Lawyers should always err on the side of formal communication. Drafting a letter or scheduling a special hearing in front of a judge requires more thought, and requests and communications are usually more thorough. Likewise, affidavits and formal motions can be redacted at the court’s discretion before they are shared with opposing counsel without breaking ex parte communication rules.

About the Author

Attorney Chris McDonough, Esq. is the founder of McDonough & McDonough and special counsel to Foley Griffin in Garden City, NY. For more than 30 years, he has represented lawyers and law students and focused on attorney ethics and attorney discipline.

If you are facing an ethical dilemma or a disciplinary action, please schedule a confidential consultation with our experienced attorneys at McDonough & McDonough.

We know what’s at stake and are ready to discuss your case at (516) 900-9042 or online.


Proven Results

Hear From Past Clients

    He offers real-world solutions to real-world problems. Attorney McDonough can be an asset to any individual or any corporation or other business entity when it comes to legal assistance.

    - Michael M., ESQ.

    Chris is extremely knowledgeable. His experience and understanding of both the law and process gave me a great feeling of confidence. I don’t have enough words to thank him for his help and support.

    - Anthony C., ESQ

    He always takes the time to explain things in a manner that is easy to understand. You can rest assured that your case will be handled professionally and with class.

    - Mario D., ESQ.

    He gives 110% in support of his clients’ cause. His work is thorough, well researched, complete and highly professional. He is a man of character and integrity, well respected by his colleagues and always striving for perfection.

    - Joel B., JD

    Today, for the first time in 20 years, and due largely to your efforts, I appeared in Court as a respected member of the Bar.

    - Bill

Protect Your Future & We Will Protect Your Rights

Confidential Consultation
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.