Ex Parte Communications

Rule 3.5(b) forbids a lawyer to “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.”¹ “Such a person” points back to the judge, juror, prospective juror, or other official that paragraph (a) names, so the same decision-makers stay protected.² The sentence carries two limits of its own: the ban applies only during the proceeding, and it yields when law or a court order authorizes the contact.

An ex parte communication is one about a pending or impending case that leaves out the other parties and their counsel.³ The ban matters because an adversarial system casts the judge as a detached neutral. A judge who sidles up to one side to discuss the case outside the other side's hearing endangers all three values at the core of judicial ethics: impartiality, integrity, and independence.⁴ The judicial code accordingly provides that a judge “shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of other parties or their lawyers, concerning a pending or impending matter.”⁵ Rule 3.5(b) addresses the lawyer on the other end of that same exchange.

Paragraph (b) is easier to trigger than paragraph (a). Paragraph (a) bars only efforts to influence an official “by means prohibited by law,” so persuasion stays lawful until someone shows an unlawful channel.⁶ Paragraph (b) treats the one-sidedness itself as the defect. A lawyer who raises only lawful points with a judge therefore still violates the rule when the opponent is not there to answer them.

Three subsections follow. The first fixes how far the ban reaches. The second marks the contacts that cannot affect a decision. The third covers the narrow cases where law or a court order permits a one-sided presentation, and the candor that permission demands of the lawyer.⁷ Jurors fall within the same sentence of Rule 3.5 but receive separate treatment below.

Scope of the Ban

Paragraph (b) reaches any communication with a covered official about a pending or impending case that excludes the other parties and their counsel.⁸ The definition turns on who was present. It does not ask why the lawyer spoke, in what form, or who started the exchange; the Model Code's wording covers communications “initiated by or with the judge.”⁹ Three results follow, and each surprises students. Good intentions do not excuse the contact. A letter counts as much as a conversation. And a judge's opening does not give the lawyer permission to continue. All three rest on what the ban protects: the opponent's chance to hear what the decision-maker hears and to answer it.

Intent changes nothing, because the injury is complete once a decision-maker hears one side with no one there to respond. A friendly chat violates the rule as surely as a calculated approach.

The judge's opening does not change the analysis. The judicial code forbids a judge to initiate, permit, or consider such communications, so a judge who starts one has breached a duty of the judge's own.¹⁰ That breach does not discharge the lawyer, who can end the exchange in one sentence by saying the motion cannot be discussed without opposing counsel present. If discipline turned on who spoke first, a lawyer could let the judge speak first and escape, and the opponent would be no better protected.

A letter does what a whispered conversation does when the opponent never sees it. The judge reads an argument that no one has had the chance to answer.

Writing to the judge was never the defect. Omitting the opponent was, and it was the same defect in the dinner conversation. A lawyer who wants to address a judge about a pending matter always has a lawful route: include the other side.

A judge's own ex parte contacts can also prompt a motion to disqualify, and courts reviewing those motions have looked closely at how openly the judge acted (see Price Bros. v. Philadelphia Gear Corp.). The Sixth Circuit, in contrast to other courts facing similar situations, upheld a refusal to disqualify after various ex parte communications, because the judge “explained to Plaintiffs' counsel the ministerial nature of these ex parte discussions before they took place” and “personally extended to Plaintiffs' counsel an invitation to attend all of these meetings.”¹¹ Openness carried that case. Paragraph (b) sorts contacts the same way: a contact does less harm the less it shuts the opponent out.

Housekeeping and Unrelated Matters

Paragraph (b) targets one thing: a communication about a pending or impending case that leaves out the other side.¹³ The definition has two parts, a subject and a missing audience, so a contact can escape the ban by failing either. A conversation on a subject unrelated to any case fails the first part and is not ex parte at all. A routine scheduling call meets both parts yet draws an exception, because it cannot change how the judge rules; it is ex parte but harmless. Keep the two apart on an exam, since the first needs no justification and the second stays excused only while its conditions hold.

The ban exists so that a decision-maker never hears one side's account of a case without the other side's chance to answer. A conversation unrelated to any pending or impending matter gives the lawyer no way to deliver such an account.

The subject alone keeps the dinette conversation safe. If the same chat drifted to the lawyer's pending motion, it would become a communication about a pending case with the other side absent, and the ban would apply from that sentence on.

Housekeeping contacts differ because they do concern a pending case. The judicial code excludes communications for “scheduling, administrative, or emergency purposes” from its ex parte rule and sets them apart from communications on “substantive matters.”¹⁴ The Code also conditions the exception: the judge must not reasonably believe the contact will advantage a party, and the parties left out must be promptly notified and given a chance to respond.¹⁵ The line is practical, because an open hearing date says nothing about the merits. A judge may take such a call only while it stays on logistics, so a lawyer who places the call stays within bounds only by staying on logistics too.

The added sentence changes the answer because the importance of a motion and the consequences of a ruling are substantive points. They urge the judge to weigh the motion more heavily than the opponent has had the chance to say it deserves, and the opponent never hears or answers that urging. Once a contact can influence the ruling, the exception stops covering it. The lawyer need not mention a single legal point for that to happen. Routing the message through the clerk cures nothing, because the judge's staff is an extension of the judge, and a message improper to give the judge is improper to give a clerk for delivery.¹⁶

An exam stem that opens with a scheduling call invites the quick answer “housekeeping, permitted,” and the stem often ends with the sentence that reverses it. Reading to the end of the call and running three questions in order avoids that trap.

Authorized by Law

Rule 3.5(b) permits ex parte contact with a covered official during the proceeding only when “authorized to do so by law or court order.”¹⁸ That clause is the one door the ban leaves open, and it opens only from the outside. The permission must come from the law or from a court order. A lawyer's own judgment that a private word would be harmless or helpful supplies none. The classic case is an application for an emergency restraining order, where some relief would be useless if the opponent heard about it first. In narrow circumstances of that kind, a lawyer may appear before a judge without the opposing party or that party's representative.¹⁹

The exam question is what the lawyer can point to. The exception does not respond to urgency the lawyer feels or to a belief that the judge would not mind. It responds to a rule or an order that permits the one-sided contact, and the permission reaches only as far as that rule or order. A rule that lets a lawyer present a restraining-order application without notice does not, by its own force, allow later private calls to the judge about other contested matters in the same case.

The hinge between the two scenes is whether notice would defeat the relief. In the first, notice to the executive would bring about the very harm the application aims to prevent, and a rule therefore lets the hearing go forward without that person. In the second, the opponent could have answered every point, so no rule had reason to excuse the opponent's absence.

Permission carries a price. In an ordinary hearing the opponent tests the lawyer's account by answering it. An ex parte hearing gives up that test, and the only protection left for the absent party is the lawyer's own disclosure. Rule 3.3(d) therefore attaches a duty to the permission: 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.”²⁰ Comment 14 states the purpose: the judge should understand the underlying facts well enough to give the absent party fair consideration, so the lawyer must “make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.”²¹

The duty is unusual. As one commentator observes, “truthfulness is the rule for lawyers, candor is the exception.” An ex parte contact is one of the occasions where the exception applies, and the lawyer's zealous advocacy must give way to candid disclosure.²² The duty reaches information that is otherwise confidential. It does not reach information that is actually privileged, meaning information the lawyer reasonably believes would not be subject to discovery or subpoena because of an evidentiary privilege such as the attorney-client privilege.²³

The second lawyer's fuller disclosure does not weaken the application. Disclosure first, advocacy second: once counsel has made full disclosure of all material facts, she is free to argue the case with full vigor.²⁴ A stem that calls a contact authorized therefore raises two separate questions. The first is whether law or court order permitted the one-sided contact, which settles the paragraph (b) issue. The second is whether the lawyer disclosed the adverse facts, which settles whether the permission was used properly.