Ethical and Procedural Considerations in Family Court Ex-Parte Requests (November 2007)

Material for Charleston County Family Court CLE–November 2007

Ex-parte relief is a drastic remedy as it denies the opposing party significant due process rights. Seeking ex-parte relief from the Family Court implicates both the Rules of Professional Conduct and the Rules of Civil Procedure. Failure to follow the rules set in place for seeking ex-parte relief raises professional conduct considerations that could lead to attorney discipline. Family law attorneys should familiarize themselves with the few rules that govern ex-parte requests.

There are four rules that family court practitioners must be familiar with in properly handling ex-parte requests: South Carolina Rule of Civil Procedure 5(b)(3) and 65(b) [Rule 2(a) of the South Carolina Family Court Rules makes these rules applicable to Family Court], South Carolina Code of Judicial Conduct Canon 3(B)(7)(a) and Rule 407, SCACR, South Carolina Rules of Professional Conduct (hereinafter SCRPC) Rule 3.3(d). Rule 5(b)(3), SCRCP, sets forth requirements that must be met in submitting proposed orders (including ex-parte orders) to the court. Rule 65(b), SCRCP, sets forth the standards the court must apply in considering requests for ex-parte restraining orders and the procedures that must be applied if ex-parte relief is granted. Canon 3(B)(7)(a) of the South Carolina Code of Judicial Conduct sets forth the standard of conduct for any judge considering an ex-parte request. Rule 3.3(d), SCRPC, sets forth ethical requirements attorneys must meet in seeking ex-parte relief.

Rule 5(b)(3), SCRCP requires that “[a]ny party providing a proposed order, proposed findings of fact or conclusions of law, or proposed judgment or other paper to the court for its consideration in any pending matter shall serve the same on all counsel of record at the same time and by the same means.” This rule would not appear to apply to ex-parte requests filed at the beginning of the case, as there is no opposing counsel. However, once counsel appears, proposed orders must be served on opposing counsel at the same time and by the same means that they are provided to the court. This rule encompasses not only ex-parte requests involving substantive relief but also includes proposed ex-parte orders requesting expedited or emergency hearings.

This rule of procedure has not kept up with technology and many attorneys, in an attempt to comply with this rule, will send opposing counsel a facsimile of the proposed ex-parte order before hand delivering it to the court. This procedure does not comply with the language of Rule 5(b)(3), though it clearly complies with the intent of the rule. However, it is definitely problematic (a violation of the Rules of Civil Procedure and potentially a violation of the Rules of Professional Conduct) to send the court an ex-parte request that has not been provided opposing counsel prior to submission.

Canon 3(g) of the South Carolina Code of Judicial Conduct states that:

A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that: (a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

This canon creates the following directives for judges in considering ex-parte requests: 1) judges cannot have ex-parte communications that deal with substantive issues; 2) judges can have ex-parte communications that deal with scheduling or administrative issues or emergencies that are not substantive; 3) judges can only have ex-parte communications that deal with scheduling or administrative issues or emergencies that are not substantive if the judge a) reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex-parte communication; b) makes provision promptly to notify all other parties of the substance of the ex-parte communication and; c) allows an opportunity to respond.

Perhaps the most important rule regarding ex-parte requests is the ethical obligation created by Rule 3.3(d) SCRPC: “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse” (emphasis added). This rule creates an ethical obligation for counsel seeking ex-parte relief to provide the court all material facts known to the lawyer, not just the material facts that support the client’s request. While no reported South Carolina case involves an attorney’s failure to comply with this rule, attorneys in other states have been subjected to discipline based on violation of this rule. See e.g., In re Arabia, 283 Kan. 851, 156 P.3d 652 (2007); Iowa Supreme Court Attorney Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812 (Iowa 2007); Reciprocal Discipline of Page, 326 Or. 572, 955 P.2d 239 (1998); Matter of Black, 262 Kan. 825, 941 P.2d 1380 (1997).

Requests for Expedited/Emergency Hearings

All of the above rules apply when requesting expedited or emergency hearings on an ex-parte basis. In making such a request, counsel must inform an opposing attorney at the same time and in the same manner that counsel makes the ex-parte scheduling request to the family court. The family court must also be informed of all material facts relevant to the scheduling request.

Requests for Substantive Relief

Requests for ex-parte substantive relief from the family court impose greater obligations on the requesting attorney. The obligation is greater, in part, because requests for substantive relief implicate SCRPC Rule 3.3(d)’s requirement of candor in ways that mere scheduling requests may not. Rarely will there be material and adverse facts relevant to an ex-parte scheduling request; frequently there will be material and adverse facts relevant to an ex-parte request for substantive relief.

Further, requests for substantive ex-parte relief must comply with the provisions of Rule 65(b), SCRCP, related to temporary restraining orders. That rule reads as follows:

No temporary restraining order shall be granted without notice of motion for the order to the adverse party unless it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall be served, together with a summons and complaint in the event no summons and complaint have previously been served in the action, upon the adverse party in accordance with the provisions of Rule 4; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a temporary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

There are numerous requirements and protections under this rule that are routinely ignored in the family courts: 1) ex-parte relief cannot be granted “unless it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon”; 2) the ex-parte order must “define the injury and state why it is irreparable and why the order was granted without notice” 3) the ex-parte order must, by its own terms, expire within ten days. This first obligation is one placed on the attorney; the other two obligations are placed upon the judge issuing the order (though it is generally the attorney who is preparing the proposed ex-parte restraining order). Further when ex-parte relief is granted “the motion for a temporary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character.” The party aggrieved by an ex-parte temporary restraining order may move for its dissolution or modification on two days’ notice (or shorter notice “as the court may prescribe”).

In my experience, rarely do the affidavits accompanying ex-parte requests give the court a balanced view of the facts (or report any material and adverse facts). However, failure to inform the court of all material facts in making an ex-parte request is a violation of the Rules of Professional Conduct. Counsel should be extremely cautious in making ex-parte requests and in insuring that such substantive requests comply with ethical obligations.

Counsel should further insure that ex-parte applications and orders comply with the provisions of Rule 65(b), SCRCP. Counsel for a party aggrieved by an ex-parte restraining order should consider seeking immediate review of the order or even seeking supersedeas with the appellate courts. See Rule 241(d)(1), SCACR (ex-parte orders are subject to immediate supersedeas review in the appellate courts without first seeking review by the issuing court).