The Ex Parte Prohibition

Ex Parte Contact With the Tribunal

The Ex Parte Prohibition

Rule 3.5(b) of the Model Rules of Professional Conduct 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 named earlier in Rule 3.5, so the rule protects everyone who decides, or helps decide, the matter. An ex parte communication is one between counsel and the court when opposing counsel is not present, and the law treats such communications as ordinarily prohibited.² Put the parts together and a violation has five elements: a lawyer, a communication to a decision maker, a pending proceeding, an absent opponent, and no authorization from law or a court order.

The rule opens with the words “A lawyer shall not:”³ Those words make Rule 3.5 a prohibition on the lawyer’s own conduct, so the disciplinary question is always what the lawyer did. The judge owes a separate duty under Model Code Rule 2.9, which provides that a judge “shall not initiate, permit, or consider ex parte communications” concerning a pending or impending matter.⁴ That judicial duty gets its own analysis later in this chapter. For now, note that a lawyer charged under Rule 3.5(b) cannot point to the judge’s lapse as an answer.

The prohibition rests on a premise of the adversary system: each party is entitled to be heard before a neutral magistrate, so that the court receives a balanced presentation of both sides.⁵ When argument is made with both sides present, the opponent answers at once what the judge has just heard. A private conversation removes that check, because the judge hears one side and the absent party has no chance to rebut. One-sided argument also exposes the judge to favoritism or animus, which undermines both real and perceived impartiality.⁶ The ordinary rule against ex parte contact therefore protects procedural fairness and public confidence in the judiciary.⁷ The text of Rule 3.5(b) contains no requirement that the contact change the outcome. The harm lies in the lost chance to answer, and the rule removes the lawyer’s chance to speak without the other side.

The two scenes use the same arguments and the same judge. The only fact that moves is whether the opponent was there to answer. Each element of the rule answers a separate question, so a fact pattern is best run through the elements in order.

Only the sixth step can excuse contact that satisfies the first five. Under narrow circumstances, such as an application for an emergency restraining order, a lawyer may appear before a judge without the opposing party or that party’s representative.⁸ The carve-outs, along with who is covered, what counts as a communication, and when a proceeding is pending, each receive their own treatment below.