Legal Ethics Opinion No. 1462

Trial Conduct: Attorney Writing Letters to Opposing Counsel and
Witness With Copies to the Court

You have presented a situation in which attorney C represents the
natural father, who is seeking full custody, in a child custody
case in juvenile and domestic relations court.  The other parties
to the suit are the maternal grandparents (represented by
attorney A), who presently have custody of the child per court
order, and the natural mother (represented by attorney B), who
seeks to either obtain custody or continue the current custody
order.  The court has set a hearing date and ordered home studies
of all parties. Attorney C has written letters to a child
psychologist, who will be a witness at the hearing, and to
attorney A, with copies of the letters to the court.  You
indicate that the letters contain the attorney's opinion as to
the merits of the case as well as his version of the facts.

You have asked the committee to opine whether, under the facts of
the inquiry, it is improper for the natural father's attorney to
communicate information to the court in the child custody case.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 7-l05(C)(l), (4), and (5) which require,
respectively, that, in appearing in his professional capacity
before a tribunal, a lawyer shall not: state or allude to any
matter that he has no reasonable basis to believe is relevant to
the case or that will not be supported by admissible evidence;
assert his personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant, or
the guilt or innocence of an accused; or intentionally or
habitually violate any established rule of procedure or of
evidence, where such conduct is disruptive of the proceedings. 
Further guidance is available in Ethical Consideration 7-32 which
cautions, in pertinent part, that, "[g]enerally, a lawyer should
not communicate with a judge relative to a matter pending before,
or which is to be brought before, a tribunal over which he
presides in circumstances which might have the effect or give the
appearance of granting undue advantage to one party"; and Ethical
Consideration 7-35 which similarly cautions that a lawyer should
follow local customs or courtesy or practice unless he gives
timely notice to opposing counsel of his intention not to do so. 

If the information will not be admissible in court, will assert
only personal opinions, or would violate an established rule of
evidence or procedure which would be disruptive of the
proceedings, the committee opines that an attorney's practice of
sending to the court copies of letters to a witness and to
opposing counsel would be improper and violative of  DRs
7-105(C)(1), (4), and (5).  The committee is of the view that if
the information could not be presented in court, there is no
ethical justification to present that information via mail to the
court.  Cf. DR 7-l09.

Committee Opinion
June 22, 1992