Also known as: ex parte communication · ex-parte communication · ex-parte communications · ex parte
Written by attorneys · grounded in primary & secondary sources — see below
An unauthorized communication between a judge and fewer than all parties or their lawyers concerning a pending or impending matter. The prohibition preserves impartiality by ensuring no party gains an unshared opportunity to influence the decision maker.
Elena Estrada's lawyer telephoned the judge's chambers to request a continuance in a contract dispute. The judge discussed the request with counsel for only one side and reset the trial date. The opposing party later learned of the change and moved to vacate the order on the ground that the conversation addressed a pending matter outside its presence.
Eduardo Enriquez sought an ex parte temporary restraining order to halt an imminent asset transfer. His lawyer presented only favorable facts to the court. The court later learned that material adverse facts had been omitted and vacated the order for failure to inform the tribunal of all known material facts.
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Frank Foster sent a letter to the judge arguing why summary judgment should be granted in his favor against the defendant. The judge read the letter without copying opposing counsel. The court later disclosed the communication and allowed a response to avoid any appearance of partiality.
Ewan Eckhart's counsel contacted the judge's chambers to request a new hearing date after a medical emergency. The judge confirmed the change by email to both sides the same afternoon and invited responses. No party obtained any procedural advantage from the brief administrative exchange.
Eva Espinosa's lawyer approached a discharged juror in the courthouse hallway to discuss the verdict. The juror had already been released from service. The contact violated the prohibition on ex parte communications with jurors.
Edward Everett's counsel telephoned the judge at midnight to request an emergency stay of an eviction scheduled for dawn. The judge granted a brief stay after confirming that the opposing party would receive immediate notice and an opportunity to respond the next morning. No party gained a substantive or tactical edge from the call.
A judge may permit an ex parte communication for scheduling, administrative, or emergency purposes that does not address substantive matters, provided the judge reasonably believes no party will gain an advantage and promptly notifies all other parties of the substance and affords them an opportunity to respond.
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In an ex parte proceeding a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
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A case remains pending until final disposition. Even after a trial judge has ruled, the judge may not engage in ex parte communications with counsel while post-trial motions or appeals remain possible.
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If a judge inadvertently receives an unauthorized ex parte communication bearing on the substance of a matter, the judge must promptly notify the parties of the substance and provide them an opportunity to respond.
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…2014–NMSC–003, N. M. , 316 P. 3d 865 (2013) Garden State Equality v. Dow , 216 N. J. 314, 79 A. 3d 1036 (2013) Ex parte State ex rel. Alabama Policy Institute , So. 3d , 2015 WL 892752 (Ala., Mar. 3, 2015) Appendix B State Legislation and Judicial Decisions Legalizing Same-Sex…