WHAT IS YOUR DUTY TO THE COURT WHEN YOU HAVE CONTACT FROM THE OTHER SIDE?

February 14, 2011 § 1 Comment

You have filed a Complaint for Divorce for your client, and thirty days have elapsed with no answer being filed by defendant. Your client wants you to get this over with, and has been calling and asking when you plan to present his case to the court. Only problem is you received a letter from another attorney the day after the defendant was served with process. The letter says that she wants to settle, and if no settlement can be reached, she intends to defend. Since that letter, though, you haven’t heard anything further.

What do you do? Can you present the case as an uncontested divorce? Do you have a duty to tell the court about the letter?

The facts above are close to those in Holmes v. Holmes, 628 So.2d 1361, (Miss. 1993), in which the Mississippi Supreme Court reversed a chancellor’s refusal to set aside an uncontested judgment of divorce in those circumstances. The supreme court stated:

“In the case at bar, Mrs. Holmes promptly contacted an attorney. Her attorney wrote her husband’s attorney and informed him that Mrs. Holmes was represented by counsel and that she wished to settle the case if possible; however, he made clear Mrs. Holmes’ intent to defend the suit should no settlement be reached. With knowledge of this letter, Mr. Holmes’ attorney nevertheless proceeded to secure a divorce by default against Mrs. Holmes. In this regard, his conduct suggests gamesmanship. In the Comment to M.R.C.P. 1, it is stated that “properly utilized, the rules will tend to discourage battles over mere form and to sweep away needless procedural controversies that either delay a trial on the merits or deny a party his day in court because of technical deficiencies.” Conversely, improper utilization of the rules invariably results in the type of gamesmanship and ambush techniques, employed in the case at bar, that the rules were designed to abolish. We refuse to condone such behavior and therefore reverse the judgment of the chancellor and remand for proceedings consistent with the opinion rendered in this cause.”

So what is your duty to the court? At your first opportunity, tell the judge with all candor what contact you have had from another attorney. The judge will decide whether the contact is sufficient to constitute an appearance. You should offer the court any correspondence for the judge to examine. If your only contact was in the form of a conversation, relate accurately what the conversation was. Sometimes that contact was with the other party. Tell the court and let the judge decide whether it was enough to be treated as a contest. The judge may rule that the other side is entitled to a notice of hearing before you may proceed.

If you fail to disclose contact from another attorney or the other party, you run the risk that the other side may file a motion to set aside that judgment, and the judge may just file away a mental note about you that you are one of those lawyers who doesn’t tell the court all it needs to know to make a fair decision.

Read the entire Holmes decision and keep in mind the supreme court’s use of the distasteful terms “gamesmanship and ambush techniques.” Judges don’t appreciate those kinds of tactics that bring both the courts and the legal profession into disrepute.

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