Concept
The General Prohibition
Judge's prohibition on ex parte communications and its exceptions
Judicial Ex Parte Communications
The General Prohibition
Rule 2.9(A) of the Model Code of Judicial Conduct opens with a flat command: a judge "shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter," except as the rule then provides.1 An ex parte communication is one initiated by or with the judge about a pending or impending case that does not include all parties and their counsel.2 The ban is the starting point, and the exceptions follow it. Any problem under this rule therefore begins with the prohibition, and an exception applies only when the facts clearly fit it.
The ban exists because of what an adversarial system asks of a judge, who is supposed to serve as a detached neutral. A judge who slips off to discuss the case with one side, outside the other side's hearing, takes in argument that no one answers and exposes the people involved to potential coercion. That opens the door to favoritism or animus and undermines both real and perceived impartiality. A contact made to benefit a party with whom the judge has a relationship that influences her judgment shows a judge who depends on that relationship.3
Two questions organize what follows: what conduct the rule forbids, and when it applies at all. The exceptions come later. The first of them permits ex parte communication for scheduling, administrative, or emergency purposes when circumstances require it and the communication does not address substantive matters, provided the conditions the rule attaches are met.4 That exception makes sense only against the background of the ban it interrupts.
What the Rule Forbids
Rule 2.9(A) gives a judge three verbs to avoid: initiate, permit, and consider.5 Each verb closes a different path by which a one-sided contact can reach a ruling. To initiate is to start the contact, as when a judge telephones one lawyer to ask how a pending motion ought to come out. To permit is to let a contact someone else started go forward, as when a lawyer corners the judge in a hallway and the judge lets the talk about the merits continue instead of ending it. To consider is to take the content into account in deciding, which reaches an unsolicited letter, email, or report that the judge reads and then relies on. A later section covers what a judge must do on receiving such a message inadvertently.
Together, the three verbs leave no legitimate path for one-sided information to enter a decision. Suppose the ban reached only initiating. A judge could then profit from every contact others began, simply by never being the one to dial. Suppose it reached initiating and permitting but not considering. A letter already in the mail would be fair game, because the judge would have started and allowed nothing. Prohibiting all three forces the judge either to stop the contact or to refuse to use it.
The rule's second clause reaches beyond the parties and their lawyers. Besides ex parte communications, the judge may not consider "other communications" made outside the presence of the parties or their lawyers, and that phrase picks up speakers who are not advocates at all.6 Improper contacts typically occur between the judge and attorneys, parties, witnesses, or law enforcement.7
The rule speaks of communications without limiting the medium, so a letter, an email, a text message, a voicemail, and a remark in a courthouse corridor are all covered. The settings that produce improper contacts are often casual. Judges meet local lawyers in courthouse halls, restaurants, bar association events, and on social media, and small talk drifts easily toward a case they share. A remark that merely mentions the case or alludes to an upcoming hearing may be harmless. Trouble begins when the exchange moves past idle conversation to matters such as the merits of the case.8
A good motive does not cure any of this. The injury from an ex parte contact is one-sided argument that the other side cannot answer, together with the appearance of a forum tilted toward whoever had private access to the judge.9 Neither depends on what the judge hoped to accomplish, so the rule asks what the judge did and ignores what the judge meant.
Had the same judge convened a conference call on custody with both lawyers on the line and a court reporter present, nothing in the call would be ex parte, because every party could hear what was said and respond to it.
The person on the other end of an improper exchange is usually a lawyer, and lawyers carry duties of their own. A lawyer who makes an ex parte contact with an adjudicator must suppress zealous advocacy and disclose candidly.10 Such contacts often benefit the lawyer involved, but they are improper regardless.11 The judicial rule and the lawyers' rules thus work as a pair, and a fact pattern in which a lawyer reaches the judge privately about a pending case calls for an analysis of both people's conduct.
Pending or Impending Matters
Rule 2.9(A) does not forbid every private conversation a judge has. It reaches only communications "concerning a pending or impending matter," and that phrase decides whether the rule applies at all.13 The asterisks beside "pending" and "impending" in the rule mark both as terms the Code defines. A matter is pending from its start until final disposition, appeals included, and an impending matter is one that is imminent or expected in the near future. The trigger is drawn this way because the rule protects decision-making in a particular case, and a party can be disadvantaged by a private contact only when a case exists, or is about to exist, in which that party has something at stake.
Talk that has nothing to do with any case falls outside the ban. With no case in the conversation, no absent party loses a chance to respond, and nothing said can shape a ruling.
The harder question arises when the facts say only that a judge and a lawyer met privately.
A good answer to a fact pattern like this one names the missing fact and shows how the outcome turns on it.14
Timing is the last piece of the trigger, and it is where students tend to release the judge too early. A matter does not stop being pending when the trial judge rules. It stays pending until final disposition, and a pending appeal is part of that period. The judgment can still be revisited, since an appellate court may reverse it or send the case back to the same judge, so a one-sided word to either side while the appeal runs can still affect the outcome.
The other end of the timeline works the same way. A lawyer who tells the judge privately about a suit to be filed next week is already talking about an impending matter, and the judge does not get to wait for the complaint to arrive before the ban applies.