Related Duties in Rule 2.9

Related Duties in Rule 2.9

Rule 2.9(A) forbids a judge to initiate, permit, or consider ex parte communications, or to consider other communications made outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as the rule provides.¹ The exceptions studied so far answer a single question: may this contact occur? Three later paragraphs of Rule 2.9 answer what the ban leaves open. The ban presumes a judge who controls everything that reaches chambers, and that control can fail in three ways:

• A communication arrives unbidden. The judge neither started it nor let it continue, and the question becomes what the judge must do now. Rule 2.9(B) answers: notify the parties and let them respond.²
• The judge goes looking. No one has contacted the judge, yet outside facts enter the case through the judge's own inquiry. Rule 2.9(C) answers: consider only the evidence presented and facts that may properly be judicially noticed.³
• Staff make contacts or gather facts. The ban would drain away through delegation if the judge bore no responsibility for the office. Rule 2.9(D) answers: make reasonable efforts, including appropriate supervision, to prevent violations.⁴

All three guard against the harm that justifies the general ban: information shapes a ruling while the party it hurts has no chance to answer. The remedies therefore echo the safeguards in the exceptions: disclosure to the parties, a decision built on what the parties actually put before the court, and supervision that holds staff to the limits that bind the judge. The first duty governs the situation judges meet most often, an unsolicited contact that no one planned.

Inadvertent Communications

Rule 2.9(B) governs the contact that reaches a judge without the judge's doing. A judge who inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter must make provision promptly to notify the parties of the substance of the communication and give them an opportunity to respond.⁵ Paragraph (A) tells the judge what not to do. Paragraph (B) tells the judge what to do after an accident, or someone else, has breached the ban. Three features of its trigger narrow the duty:

• The communication reached the judge inadvertently, so the judge neither started it nor let it continue.
• The communication was unauthorized, so no exception in Rule 2.9(A) covers it.
• The communication bears upon the substance of a matter, so a stray contact that touches nothing about the merits does not set the duty in motion.

The first feature separates this duty from the general ban. A judge who hears an unsolicited remark about a pending case and ends the conversation has permitted nothing. A judge who invites the speaker to go on has permitted a one-sided communication, stands under Rule 2.9(A), and gets no shelter from paragraph (B).⁶

The rule demands a remedy instead of another prohibition because many improper contacts happen without any fault of the judge. A lawyer may approach a judge outside court and make an unsolicited statement before the judge can end the conversation, and a judge may realize only afterward that a communication was improper. A ban cannot reach contacts the judge never chose, yet the harm to the excluded side is the same whoever is to blame: one party has put something before the judge that the other has had no chance to answer. The rule therefore substitutes disclosure for prevention. Once every party learns what was said, the excluded side can correct, contest, or supply context for what the judge heard. The rule itself requires notice and an opportunity to respond. Whether the information supports a request that the judge be disqualified is a separate question, which notice at least lets the excluded party raise.⁷

This duty resembles the notice condition of the scheduling exception, but the two do different work. Under the scheduling exception, prompt notice to all other parties of the substance of the contact, with an opportunity to respond, is one of the conditions that makes a logistical contact permissible, so a judge who skips it loses the exception.⁸ Under Rule 2.9(B) the contact was never authorized, and nothing the judge does afterward changes that. The notice repairs a blameless contact by returning the excluded party to the position the ban was meant to give it. The components are the same as before: the notice must be prompt, it must convey the substance of what was said, and it must leave time for a response that can still affect what the judge does. A message saying only that someone spoke to the judge about the case reveals that a contact occurred and hides the content the other side would want to contest. A notice that arrives together with a signed ruling leaves nothing to answer. As under the scheduling exception, the rule asks the judge to make provision for notice, so chambers staff may send it, but the duty stays with the judge.

A judge who did nothing wrong may still have something left to do, as the first scene shows.

The same kind of contact, met with a different response, shows what compliance looks like.

Neither judge sought the contact, so what each did afterward is the only thing that separates violation from compliance. A stem built on an unsolicited remark therefore invites two wrong answers: that the judge owes nothing because the judge was blameless, and that the judge must be disqualified because the contact occurred. The rule requires notice of the substance and an opportunity to respond.

No Independent Investigation

Rule 2.9(C) closes a gap that the ex parte ban leaves open: 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."¹⁰ Rule 2.9(A) regulates what other people say to a judge. Under paragraph (C) no other person need be involved, because the contact is between the judge and a source the judge went out and found, such as a courthouse visit, a map, a website, or a search engine. The rule works in two halves. The first forbids gathering facts outside the case. The second names the only material a decision may rest on: the evidence the parties presented, plus facts a court may properly accept without formal proof because they are the proper subject of judicial notice.

The reason for tying the judge to that material lies in how evidence reaches a court. Witnesses are sworn and cross-examined, exhibits are offered and objected to, and each side may answer the other's proof. A fact the judge finds alone has passed through none of that testing. Neither side can say that it is wrong, out of date, or about a different person, and the side it hurts may never learn that the judge has it. The record suffers too. A fact found outside it is invisible to anyone who later reads the record, so a mistake built on that fact is hard to catch.

Because the harm comes from the information entering the decision, whoever fetched it, the problem reaches investigation carried out through others. In Price Bros. v. Philadelphia Gear Corp., the appellant alleged that the district judge had sent his law clerk to gather evidence, which the appellant said required disqualification. The Sixth Circuit observed that not every ex parte communication to the trial court requires reversal, but it found the allegation serious enough to remand so that its truth could be determined.¹¹ An errand by a clerk to collect evidence is the judge's investigation by another hand. Consulting staff about the law and the record is a different matter, and the text of paragraph (C) speaks of facts.

The same logic reaches the screen, and an exam is likely to test it there.

A judge who needs to know whether a contract's deadline fell on a Sunday stands in a different position.

The first judge went looking for a fact the father could reasonably have disputed and kept the search secret. The second relied on a fact that may properly be noticed, announced it, and let the parties speak. How easily something can be found online says nothing about whether a court may notice it. A judge's wish to get the answer right does not matter either, because the injury to the party who cannot respond is the same whatever the judge hoped to achieve.

The same limits govern a judge's online conduct, though the two paragraphs catch different acts. Reading a party's page is investigation even if no one sends the judge a word, so it falls under (C) alone. Posting about a pending case, or trading messages with someone connected to it, is communication, and a reply from an outsider reaches the judge outside the presence of the parties and their lawyers, which is conduct covered by (A).¹² A judge who messages a witness to learn what happened has done both at once, so a full answer addresses both paragraphs. Motive does not rescue the conduct. When a Texas judge was confronted about her posts concerning proceedings, she answered that she meant to promote "transparency" and to "encourage individuals to come watch the proceedings." The Texas State Commission on Judicial Conduct was unconvinced. It found the posts inconsistent with the proper performance of her duties because they cast reasonable doubt on her impartiality and violated her own admonition to jurors.¹³ The Commission's ground there was impartiality, not paragraph (C), but the lesson carries: a judge's stated purpose does not decide whether the conduct was proper. The usual exam error is to clear a judge because no party or lawyer ever contacted the judge, when paragraph (C) requires no contact with anyone.

Supervising Court Staff

Rule 2.9(D) turns the ban on ex parte communications into a duty about the judge's own office: a judge "shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control."¹⁵ The consultation exception lets a judge communicate with clerks, staff, and fellow judges, other than judges who are disqualified from the case or who may review the matter on appeal.¹⁶ This paragraph supplies the other half of that permission. The people who help the judge decide are held to the same ex parte limits as the judge, and the judge answers for seeing that they stay within them.

The duty exists because staff stand in for the judge. A judge's staff are an extension of the judge, so an ex parte communication that would be improper for the judge is equally improper for the judge's staff.¹⁷ Without paragraph (D), a gap would remain. The ban in Rule 2.9(A) binds the judge personally, and a judge who never supervised the office could still receive, through a clerk or a docket assistant, every one-sided argument the judge could not hear directly. The excluded party cannot see inside chambers to learn whether the contact happened, and the lawyer who placed the call has no reason to stop it. Only the judge can set the office's practices, tell staff what to say to callers, notice when something goes wrong, and correct it. The rule therefore puts the responsibility on the person who holds that authority.

The wording of the duty has three parts that an exam answer should keep separate:

• The standard is reasonable efforts, which measures what the judge did to prevent violations and does not demand a perfect result.
• The means include appropriate supervision, which in practice means active steps such as clear instructions to staff about calls and filings, and checking how the office handles them.
• The reach extends to staff, court officials, and others subject to the judge's direction and control, so the question is whether the judge can direct the person's work, whatever the person's title.

The standard is easiest to see in the office that fails it.

A second chambers receives the same kind of calls and handles them differently.

The lawyer's conduct and the content of the calls were the same in both chambers. What differs is what the judge did before and around the calls. The first judge left the office to run itself, so one side's argument had a free path to the bench. The second judge set a limit, told staff what to do when a call strayed, and checked that the limit held. The usual exam error runs in two directions. One error clears the first judge because the judge never personally talked to anyone, which overlooks that paragraph (D) reaches what happens in the judge's office. The other convicts the second judge because a lawyer tried to argue the merits to staff. The duty is one of effort, so the question is what the judge did to prevent violations, and one lapse by an employee does not by itself show that those efforts fell short.

Reasonable efforts continue after the instructions are given. A judge who learns that a one-sided contact reached chambers should correct the practice, and if the substance of a matter reached the judge, the notice duty of Rule 2.9(B) applies as well. Supervision is the preventive counterpart to the rules on inadvertent communications and independent investigation, and it covers everyone whose work the judge directs.