• In Re Hendrick: Oregon Supreme Court Discusses Meaning of "Ex Parte"
  • April 28, 2009 | Author: David J. Elkanich
  • Law Firm: Hinshaw & Culbertson LLP - Portland Office
  • Lawyers use the phrase “ex parte” all the time — but it is commonly misunderstood and misused. In Oregon, for example, lawyers refer to “ex parte” as the time and place set for parties to go to court to have address relatively minor matters. A Multnomah County local rule even requires lawyers to give notice to the opposing party before attending “ex parte”. I also have heard other lawyers use “ex parte” to refer to communications between one party and the judge, even where the party copied the opposing party on the communication.

    In In re Hendrick, OSB 06-110, SC S056041 (April 2, 2009), a recent Oregon disciplinary matter, the Oregon State Bar served its proposed trial exhibits on the accused lawyer in advance of trial, and contemporaneously served them on the three trial panel members.  On appeal, the accused lawyer argued this was an improper “ex parte” communication with the factfinders.  The Court disagreed, stating that the accused lawyer was neglecting a fundamental point, fatal to his position:

    That fundamental point is that the Bar’s communications with the trial panel were not ex parte. Black’s Law Dictionary defines the phrase ex parte as follows: “Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief.” Black’s Law Dictionary 616 (8th ed 2004). Thus, an essential feature of an ex parte communication is that it is made without notice to the opposing party. Here, documents attached to the accused’s own opening brief show that the Bar fully apprised the accused of its intent to provide the trial panel with an advance copy of its exhibits and that, when it did so, it also provided the accused with copies of everything that it gave the trial panel.