Applying the Exception Together

Rule 2.9(A) forbids a judge to "initiate, permit, or consider" certain communications, then adds "except as follows." Every ex parte problem therefore runs in two stages: does the ban reach the contact, and if it does, does a listed exception take the contact out of the ban?¹ The earlier subsections taught the scheduling, administrative, or emergency exception one condition at a time. This section strings those conditions into a routine you can run in order on any set of facts. Under exam pressure the usual error is to seize on one innocent-looking feature of the facts and stop. A fixed sequence blocks that error. Check every condition, and quit at the first one the facts fail.

Exam Analysis Steps

Because the exception is a permission that depends on conditions, failure at any step ends the inquiry in favor of the general ban. The steps also put the questions answerable from the contact itself ahead of the question about what the judge did afterward. Run them in this order:

Decide whether the contact is an ex parte communication, or another communication made outside the presence of the parties or their lawyers, and whether it concerns a pending or impending matter. If it does not, Rule 2.9(A) is not triggered and the analysis ends.²
Identify which exception the facts invite. The ban gives way only to an exception the rule lists, and the scheduling, administrative, or emergency exception is only one of several.
Test the scheduling exception's threshold. Circumstances must require the contact, its purpose must be scheduling, administrative, or emergency, and it must not address substantive matters.³
Ask whether the judge reasonably believed, on the facts the judge knew, that no party would gain a procedural, substantive, or tactical advantage.⁴
Ask whether the judge made provision promptly to notify all other parties of the substance of the communication and gave them an opportunity to respond.⁵
If every step is satisfied, the contact is permitted. If any step fails, the contact is a prohibited ex parte communication.

The conditions are cumulative because each guards against a different failure, and none can be traded for another. The threshold keeps the merits out of the contact. The no-advantage belief keeps even a contact about logistics from tilting the field toward whichever side reached the judge first. Notice and response lets the excluded side learn what was said and correct whatever slipped through. Remove any one condition and a gap opens that the other two cannot close. A fully disclosed discussion of the merits still hands one side an argument the other has had no chance to answer. A prompt notice of a favorable reset still follows a decision the judge made without sound reason to believe the parties stood on equal footing. The rule's structure points the same way, since it permits the contact provided that the listed conditions are met.⁶

Steps three and four examine the contact as it happened: what it concerned and who stood to gain. Step five examines what the judge did afterward. The order matters because students credit notice most readily. Notice is easy to spot on the page, and a stem that ends with a courteous email to the other side invites an answer that stops there. Notice can only complete a contact that already cleared the earlier steps, so it is the last question to ask and the weakest ground for concluding that the contact was proper.

Consider what the routine does with a call that looks proper until its last detail.

A neighboring courtroom handles an almost identical call differently.

The request, the absence of merits talk, and the judge's belief are the same in both courtrooms. Only the timing and content of the notice differ, and that difference alone moves the result from permitted to prohibited. One failed step is enough, which is why the routine asks about every step even when the first four look easy.

Good notice at the last step cannot repair a failure at an earlier one. Suppose a lawyer stops the judge in a courthouse corridor and asks whether the judge is inclined to grant a pending motion, and the judge answers. That exchange addresses substantive matters, so it fails step three, and the judge has permitted a one-sided communication on the merits that the exception cannot reach. A clerk's email to both sides that afternoon, reporting everything that was said, discloses the contact but does not change the answer. The exception was already unavailable when the question was asked and answered.

Two habits improve exam answers built on this routine. First, read the stem for the step it is testing. A stem that describes the request in detail and says nothing about what the judge did afterward usually aims at step five, and one that describes a conversation drifting past the hearing date usually aims at step three. Second, do not stop at the question of who placed the call. The rule bars a judge from initiating, permitting, or considering the communication, so the judge cannot escape by pointing out that the lawyer started it.⁷

Applying the Exception Together

Endnotes11