Opinion #35. Providing Opposing Counsel with Copy of Draft Order
Issued by the Professional Ethics Commission
Date Issued: January 17, 1983
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?
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.