Ethical Practices in the Email Age: Courtesy Copy Emails to Judges

As the court system has evolved into the era of permitting emails to transmit courtesy copies of pleadings and motions, a troubling trend has ensued. Recently, in the ISBA’s Central discussion, several lawyers noted that their opposing counsel are raising new arguments or making disparaging comments in emails transmitting courtesy copies to the judge.¹ This article will discuss this issue and suggest best practices to use to correct this abusive behavior.

The use of courtesy copy emails to raise new arguments or make disparaging comments is both disturbing and new. As pointed out in the initiating post in the ISBA discussion, this poses several problems: (1) the arguments and comments are outside the record and cannot be effectively reviewed on appeal; (2) it places the Judge “in an ethical trick bag” if the clerk forwards the transmittal to the Judge; and (3) a judge’s clerk must assume a discretionary role of deciding what communications should or should not be sent to the judge.² Additionally, all counsel are put in the awkward position of not knowing  whether the judge actually read the new arguments and/or disparaging comments. Can opposing counsel respond without first seeking leave of court as the record is now blurred?

Within the spirit of the Illinois Rules of Professional Conduct and the court’s inherent powers, there are ways to curb this type of behavior. As Justice Cardozo once observed: “Membership in the bar is a privilege burdened with conditions.”³

There is no statute, Canon of Judicial Conduct, Rule of Professional Conduct, or Supreme Court Rule that covers this exact situation. Since these transmittal emails are not a “pleading, motion and other document of a party,”⁴ Supreme Court Rule 137 does not apply.⁵ Moreover, a party moving for Rule 137 sanctions must show that the opposing party made untrue and false allegations without reasonable cause for the mere purpose of invoking harassment or undue delay of the proceedings.⁶ Finally, our supreme court has recognized that: “Because Rule 137 addresses the pleadings, motions and other papers a litigant files, the rule does not provide a sanction against all asserted instances of bad faith conduct by a litigant or the litigant’s attorney during the course of litigation. [Citation omitted.] For example, a party’s pleadings may conform to Rule 137, yet the party may be guilty of other rule violations amounting to bad faith.”⁷ Thus, in this circumstance, a motion seeking Supreme Court Rule 137 sanctions is not likely to succeed. The question is, then, how should this behavior be sanctioned?

To us, the court’s inherent powers are best suited to stop this type of behavior. Illinois Code of Judicial Conduct, Canon 3 (Illinois Supreme Court Rule 63), provides, in part, that: “A judge should maintain order and decorum in proceedings before the judge.”⁸ While not directly addressed by our Rules of Professional Conduct, this behavior implicates Illinois Rules of Professional Conduct 3.5 (“A lawyer shall not: … (d) engage in conduct intended to disrupt a tribunal.”)⁹, 4.4 (“(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, ….”)¹⁰ and 8.4 (It is professional misconduct for a lawyer to: … (d) engage in conduct that is prejudicial to the administration of justice.)¹¹. These Rules of Professional Conduct, thus, parallel the judge’s duty.

A judge “has the inherent power to punish, as contempt, conduct that is calculated to impede, embarrass, or obstruct the court in its administration of justice or derogate from the court’s authority or dignity, or to bring the administration of the law into disrepute.”¹² Assuming that a briefing schedule order was entered, or is part of the circuit court’s “local” rules, any argument raised in a courtesy copy email violates that order or local rule and is an act of direct criminal contempt.

Criminal contempt sanctions are imposed to punish past willful misconduct, not compel the contemnor to perform a particular act.¹³ Direct criminal contempt is conduct that is: (1) “personally observed by the judge,” or (2) “committed outside the immediate physical presence of the judge but within an integral part of the court, i.e., the circuit clerk’s office.”¹⁴ Unlike indirect criminal contempt, where the court does not observe the contemptuous act, “[n]either a formal charge nor an evidentiary hearing must precede a hearing on direct criminal contempt because the misconduct was actually observed by the court and the relevant facts lie within the court’s personal knowledge.”¹⁵ Importantly, the judge must find that the contemnor’s conduct was willful.¹⁶ Thus, for attorneys who repeatedly send courtesy copy correspondence containing new arguments or disparaging remarks, the judge can find the conduct willful and immediately impose direct criminal contempt sanctions. We expect that this will rarely occur.

Suggested Best Practices: First, attorneys should not include arguments or comments in an email to a judge and/or his/her clerk. If attorneys receive one, print it out and file it with the clerk of the court, thereby placing it in the record. Second, judge’s should stop this type of behavior by admonishing any attorney who goes beyond the ministerial contents of a courtesy copy letter or email, and sanction, through direct criminal contempt, attorneys who repeatedly flout the spirit of the rules and the Judge’s admonitions. Further, each circuit court could adopt a local rule, pursuant to Illinois Supreme Court Rule 21¹⁷, which specifies the contents of courtesy copy and other communications with Judges to specifically prohibit this type of behavior.

The accepted use of email for filing and transmittal has brought many conveniences and efficiencies to the court system. However, with its advantages, the opportunity for abuse has surfaced, challenging the court rules of professional conduct and civility. Hopefully, our suggestions can be a step in the right direction to curb these inappropriate practices.

David W. Inlander is managing partner of Fischel | Kahn, Chicago, where he concentrates in family law and high-end matrimonial mediation and is a past chair of the ISBA Bench and Bar Section Council.

Ronald D. Menna, Jr. is a principal at Fischel | Kahn, Chicago, where he concentrates in commercial litigation, civil appeals, guardianships and corporate law and is a past chair of the ISBA Civil Practice and Procedure Section Council and chair of the Allerton 2022 Conference.