Also known as: ex parte communications · ex-parte communication · ex parte contact
Written by attorneys · grounded in primary & secondary sources — see below
A communication made to a judge outside the presence of all parties or their lawyers concerning a pending or impending matter.
Edith Eberhardt's lawyer called the judge to discuss the strength of evidence in her pending contract dispute. The judge listened and responded without notifying opposing counsel. The communication violated the prohibition because it addressed substantive issues outside the presence of all parties.
Esme Ellington's attorney telephoned the judge to reschedule a hearing due to a family emergency. The judge agreed to the new date but failed to notify the other side promptly or allow a response. The exception for administrative matters did not apply because the required notice and opportunity to respond were omitted.
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Esther Eisenberg met privately with the judge to request an extension that would give her additional time to prepare expert reports. The judge granted the request without confirming that no tactical advantage would result for any party. The communication fell outside the permitted exception because the judge could not reasonably believe the contact was neutral.
Elijah Edwards's counsel spoke with the judge about an emergency continuance for a trial. The judge later notified the other parties of the conversation but waited several days and did not give them a chance to object before ruling. The exception failed because prompt notice and an opportunity to respond were not provided.
Evergreen Bank submitted comments in an informal rulemaking proceeding. Agency staff later received additional materials from industry representatives that were not placed on the public docket. The court examined whether those contacts undermined the fairness of the final rule under administrative procedure standards.
A judge may engage in ex parte communications for scheduling, administrative, or emergency purposes that do not address substantive matters. The judge must reasonably believe no party gains an advantage and must promptly notify all other parties of the substance while giving them an opportunity to respond.
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The judge must promptly notify the parties of the substance of the communication and provide them an opportunity to respond.
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The prohibition applies to communications concerning a pending or impending matter.
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A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so, including in therapeutic or problem-solving courts.
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…the future, and spur the provision of information which the agency needs. The possibility of course exists that in permitting ex parte communications with rulemakers we create the danger of "one administrative record for the public and this court and another for the Commission." Under the Clean Air Act procedures, however, "[t]he…