Section 10.2: Performing Judicial Duties and Ex Parte Communications (Canon 2 Rules)

Performing Judicial Duties and Ex Parte Communications (Canon 2 Rules)

The Prohibition on Ex Parte Communications

Ex parte communications represent one of the most significant threats to the integrity of the adversarial system. An "ex parte communication" is any communication between a judge and a party, their attorney, or any third party, made outside the presence of all parties to the litigation, concerning a pending or impending matter before the court. The basic principle, codified in Model Rule 2.9, is that a judge must not initiate, permit, or consider ex parte communications.

The primary rationale for this strict prohibition is to ensure that all parties have a full and fair opportunity to hear and respond to any arguments, facts, or legal theories presented to the decision-maker. Allowing a judge to receive information privately from one side deprives the other side of due process and creates a high risk of bias or unfair influence.

Crucial Exceptions to the Ex Parte Rule

The Model Code recognizes that certain circumstances require or permit limited communications outside the presence of all parties. These exceptions are narrowly tailored and heavily tested on the MPRE.

1. Administrative, Scheduling, and Emergency Purposes

Under Rule 2.9(A)(1), a judge may engage in ex parte communications for scheduling, administrative, or emergency purposes, but only if three strict conditions are met:

• No Substantive Impact: The communication does not address substantive matters or the merits of the case.
• No Tactical Advantage: The judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the communication.
• Prompt Disclosure: The judge promptly notifies all other parties of the substance of the ex parte communication and gives them an opportunity to respond.

For example, if a plaintiff's attorney calls the judge's chambers to request a brief extension of a filing deadline because of an unexpected medical emergency, the clerk or judge may handle this request ex parte if it is purely administrative. However, the judge must immediately notify the defendant's counsel of the call, explain the situation, and allow the defendant to object or respond.

2. Consulting with Disinterested Legal Experts

Under Rule 2.9(A)(2), a judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding. This is a common tool in complex litigation involving specialized fields of law (e.g., patent disputes or international law). However, to prevent secret influence, the judge must:

• Give advance notice to the parties of the identity of the expert to be consulted and the subject matter of the advice.
• Provide the parties with a copy of the written advice.
• Afford the parties a reasonable opportunity to object and respond to the expert's advice before the judge relies on it.

3. Consultation with Court Staff and Other Judges

Rule 2.9(A)(3) permits a judge to consult with court staff, court officials, or other judges. A judge may discuss a case with their own law clerks, the court administrator, or colleague judges on the same court. However, this exception is subject to two critical limitations:

• No Outside Facts: The judge must make reasonable efforts to avoid receiving factual information that is not part of the evidentiary record.
• No Abrogation of Responsibility: The judge must not delegate the ultimate responsibility to decide the matter to anyone else. The decision must remain the judge's own.

4. Settlement Conferences with Consent

Under Rule 2.9(A)(4), a judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the court. Settlement negotiations often require candid discussions about the strengths and weaknesses of each side's case, which may be difficult to achieve in joint sessions. If the parties explicitly consent, the judge may meet with the plaintiff's side and the defendant's side separately to facilitate a resolution.

5. Communications Authorized by Law

Under Rule 2.9(A)(5), a judge may engage in ex parte communications when expressly authorized by law. The most common examples are:

• Search Warrants: A judge routinely reviews search warrant applications and hears testimony from law enforcement officers ex parte.
• Temporary Restraining Orders (TROs): In emergency situations where irreparable harm is imminent, a judge may issue a TRO ex parte, provided the moving party satisfies the strict statutory requirements for notice and justification.

Remedying Inadvertent Ex Parte Communications

If a judge inadvertently receives an unauthorized ex parte communication (e.g., a party sends a letter directly to the judge's chambers, or an attorney approaches the judge in a hallway to discuss a case), the judge must not ignore it. Under Rule 2.9(B), the judge must promptly notify the parties of the substance of the communication and provide them with a reasonable opportunity to respond.

The Prohibition on Independent Factual Investigation

A critical and frequently tested rule is Rule 2.9(C), which states: "A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed."

This rule applies to all forms of factual research, including electronic research. A judge cannot use Google, search online databases, read news articles, look up locations on Google Maps, or visit a physical location to verify testimony or gather facts. The judge is confined strictly to the record compiled by the parties in the courtroom.

For example, if a witness testifies that a car accident occurred at a specific intersection and that the visibility was blocked by a large billboard, the judge cannot visit the intersection to see if the billboard is still there. Nor can the judge search Google Street View to inspect the intersection. If the judge does so, they have violated Rule 2.9(C) and may be subject to discipline. If a fact is not in the record, the judge cannot consider it unless it meets the strict requirements for judicial notice (i.e., it is a fact generally known in the community or capable of immediate and accurate verification from unquestionable sources, and the parties are given notice and an opportunity to be heard).

Public Statements About Pending and Impending Cases

To protect the fairness and integrity of judicial proceedings, Rule 2.10 imposes strict limits on what judges may say publicly about cases. A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.

Scope and Exceptions

• Any Court: This prohibition is not limited to cases pending before the judge's own court. A judge in State A cannot make public comments about a high-profile trial pending in State B if those comments could affect its fairness.
• Impending Cases: The rule applies to impending cases (cases that have not yet been filed but are imminent, such as when an arrest has been made but charges have not yet been filed).
• Official Duties Exception: The rule does not prohibit judges from making public statements in the course of their official duties, explaining court procedures, or commenting on proceedings in which the judge is a litigant in a personal capacity.
• Supervisory Duty: A judge must require court staff and others under the judge's direction to refrain from making public statements that the judge would be prohibited from making under this rule.