Concept

Investigation Versus Ex Parte Contact

Deciding on the record: no independent investigation of facts

Investigation Versus Ex Parte Contact

Outside information can reach a judge by two routes. Someone can bring it, as when a lawyer mails a private letter or a party telephones chambers, or the judge can fetch it, as when the judge searches a witness's name online or walks a boundary line alone. Rule 2.9(C) governs the second route: “[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.”¹ The operative verb, investigate, names something the judge does. The earlier sections traced how far it reaches, from a weekend visit to a fence line to a search-engine query to a clerk sent out on the judge's behalf.

Rule 2.9 handles the first route through other provisions, with their own conditions, narrow exceptions, and cures. A second cut crosses the first, because outside information may concern the facts of the case or the law that governs it. Rule 2.9(C) is aimed at facts, and outside help on the law is treated separately.

Sorting a fact pattern into the right provision before applying any rule prevents a common exam error. A lawyer who phones the judge to argue a pending motion has not made the judge investigate anything, so asking whether the judge violated Rule 2.9(C) misses the problem. A judge who quietly reads up on a party's reputation has received no communication from anyone, so the contact provisions do not reach that conduct, and Rule 2.9(C) does. The first subsection below separates communication from investigation, and the second separates law from facts.

Communications Versus Investigation

Rule 2.9(A) bars a judge from initiating, permitting, or considering ex parte communications, and from considering other communications made to the judge outside the presence of the parties or their lawyers, about a pending or impending matter, subject to listed exceptions.² An ex parte communication is a contact with the judge by or for one side while the other side is absent. Rule 2.9(C), by contrast, reaches the judge's own fact-gathering. Both provisions keep untested information out of a decision, which is why students tend to merge them, but different conduct triggers each and each offers a different cure.

The dividing line is who set the information in motion. In the ordinary communication case, a lawyer, a party, or an outsider reaches the judge. In the ordinary investigation case, no one reaches the judge at all: the judge opens a website, walks a site, or sends a clerk, and the information is in the case only because the judge went and got it. Rule 2.9(A) covers communications the judge initiates as well as those the judge receives,³ so a judge who telephones an outsider to ask about a party falls under both provisions, and whatever the outsider says is also a fact gathered outside the permitted sources. Two questions therefore sort every problem: who started the contact, and where did the information come from?

Some contacts are harmless, and the rule makes room for them. When circumstances require it, Rule 2.9(A)(1) permits an ex parte communication for scheduling, administrative, or emergency purposes that does not address substantive matters.⁴ Two conditions apply. The judge must reasonably believe that no party will gain a procedural, substantive, or tactical advantage,⁵ and the judge must promptly make provision to notify the other parties of the substance of the communication and give them an opportunity to respond.⁶ Court business has to keep moving, and a question such as whether a hearing can start an hour later cannot always wait until every lawyer is on the line. The first condition keeps that convenience from becoming an advantage, and the second makes sure the absent side learns what was said and can answer it.

Rule 2.9(B) supplies the repair for the contact the judge never invited. If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge must promptly make provision to notify the parties of the substance of the communication and give them an opportunity to respond.⁷ The harm of an unsolicited letter or call is that one side has had a private audience and the other cannot answer what it has not seen. Notice and a chance to respond meet that harm directly, because the message came from an identified sender, it can be reported to the other side, and the other side can reply. The judge did not choose the contact, so the rule asks only for a prompt response to what has happened.

Rule 2.9(C) offers nothing comparable. Its text names two permitted sources and stops, with no provision for telling the parties afterward and inviting a reply. The difference follows from who made the move. When someone else contacts the judge, there is a sender and a message that can be disclosed and answered. When the judge goes out and finds facts, the judge chose the source and decided what to look at, and there is no sender whose message can be disclosed. The rule therefore operates on the act of independent investigation itself and does not depend on a cure after the fact.

The tempting error is to answer every outside-information problem with “notify the parties and let them respond.” That answer is right for an unsolicited letter and wrong for a judge's own search. The notice-and-response mechanism appears in the provisions on communications, and the text of Rule 2.9(C) contains none, so an answer that treats afterward notice as its repair adds a provision the text does not contain.

Hypothetical Illustration

A plaintiff's lawyer mails the judge a letter urging that a pending summary judgment motion be granted and sends no copy to the defense. The judge did not ask for it and realizes what it is only after reading the first paragraph. This is an inadvertently received communication, so the judge must promptly notify the defense of its substance and give the defense an opportunity to respond.

A second judge, uneasy about a defense witness's testimony, searches the witness's name online during a recess and finds an old news article about a business dispute. No one sent the judge anything, so there is no communication to disclose. The search is itself an independent investigation. The article was neither presented as evidence nor shown to be properly judicially noticeable, and using it to discount the witness means considering a fact outside the two permitted sources.

Exam Analysis Steps

Sort the facts before choosing a rule:

Identify whether another person, such as a lawyer, a party, or an outsider, communicated with the judge outside the parties' presence, or whether the judge went and found the information with no one communicating it.
If the contact was a communication, ask whether it concerned only scheduling, administrative, or emergency matters, gave no party an advantage, and was promptly disclosed to the other side with a chance to respond.
If the communication was unauthorized, bore on the substance of the matter, and was received inadvertently, apply the duty to notify the parties promptly and give them an opportunity to respond.
If the judge gathered facts independently, ask whether the facts came from the evidence presented or are properly judicially noticeable, and recognize that the rule's text supplies no notice-and-response cure.
If the judge started the contact in order to obtain facts, apply both the communication provisions and the investigation prohibition.

The first step does most of the sorting. A judge who received something is in the territory of the communication provisions with their repairs, while a judge who went looking is in the territory of Rule 2.9(C), where the only question is whether the fact came through a permitted source.

Law Versus Facts

Rule 2.9(A)(2) lets a judge obtain the written advice of a disinterested expert on the law applicable to a proceeding, on conditions: the judge must give the parties advance notice of the person to be consulted and the subject matter of the advice, and must afford them a reasonable opportunity to object and respond to the notice and to the advice received.⁹ Each condition does work. The adviser must be disinterested, so the advice is not one side's argument delivered through a third party. The advice must be written, which leaves the parties a document they can read and answer. Advance notice lets them object to the choice of adviser or to the question before the advice shapes anything, and the right to respond extends to the advice once it arrives.

That permission sits beside Rule 2.9(C), which is written entirely in terms of facts: the judge shall not investigate facts in a matter independently and may consider only the evidence presented and facts that may properly be judicially noticed.¹⁰ Nothing in that text bars a judge from learning the law, and a judge who reads the governing statute and the decisions interpreting it is not investigating facts. The two subjects differ in how they are tested. The facts of a case are contested, and testimony, objection, and rebuttal are how they get tested. The law is a body of authority that the judge is expected to know and the parties can address in argument, and a legal conclusion can be checked against the authorities. Advice about the law therefore feeds no untested evidence into the decision, while a private fact exists nowhere except in the judge's own account of it.

Notice still matters even though advice on law adds no evidence. Without it, the parties would not know whose views were shaping the ruling and could neither object nor answer. The advance notice and the opportunity to respond keep the consultation in the open.

Hypothetical Illustration

A judge facing a thorny professional-responsibility question asks a law professor with no connection to either side for written advice on the governing rules. The judge tells the parties the professor's name and the subject of the advice beforehand and lets them object and respond to both the notice and the advice. Every condition is met, and the consultation is permitted.¹¹

The same judge, still uncertain, asks the same professor a second question: what the defendant probably did on the night in question and how the events likely unfolded. The professor has no stake in the case and may offer a thoughtful guess. The request seeks facts from outside the record, so it falls on the wrong side of Rule 2.9(C) despite the adviser's disinterest. The professor was not at the scene, and nothing the professor says could be cross-examined, objected to, or rebutted.

Disinterest answers one concern, whether the source has a motive to shade the answer. The defect in outside facts is a different one, the absence of testing, and a neutral source does not supply it. Advance notice would not rescue the inquiry either, because the notice-and-objection route belongs to the permission for legal advice, and Rule 2.9(C) offers no counterpart for facts.¹² The source of a fact decides compliance, and the character of the person supplying it does not.

The same line runs through the earlier treatment of staff: clerks may advise the judge on the law but may not be sent out to gather facts. An outside expert follows the same split, with the notice and objection steps that Rule 2.9(A)(2) adds. In every setting, law can be discussed with others, while facts must come through the record.

Exam Analysis Steps

An exam can ask both whether an outside consultation is allowed and whether notice can repair it, so sort what the judge asked before looking at who answered:

Identify what the judge asked the outside person to supply, and sort it into a question about the law applicable to the proceeding or a question about what happened.
If the request seeks a fact, conclude that Rule 2.9(C) is violated unless the fact came from the evidence presented or is properly judicially noticeable, whatever the person's expertise or disinterest.
If the request seeks law, ask whether the adviser is disinterested and whether the advice is in writing.
Ask whether the judge gave the parties advance notice of the person and the subject matter and afforded them a reasonable opportunity to object and respond to both the notice and the advice.

The first step decides most problems, because a request that seeks facts ends the analysis no matter how the later steps come out.