23.14. Ex parte communications

Ex parte communications are communications between a judge and only one side to a dispute or communications about a dispute outside the presence of the parties or their representatives.  The problem with ex parte communications is that they undermine the adversarial nature of the legal process by presenting only one side to a dispute.  There are certain situations where ex parte communications are allowed – for example an application for a temporary restraining order – but recall that in those situations the lawyer presenting the case has an ethical obligation to disclose all facts (even those adverse to the client) that are necessary for the judge to make an informed decision.[1]  A judge has an obligation to ensure that the judge’s staff also do not hear improper ex parte information.[2]

In most situations ex parte communications are unethical. The CJC sets out five situations where ex parte communications are allowed:

• For scheduling, administrative, or emergency matters so long as no party will gain a “procedural, substantive, or tactical advantage” as a result of the communication and the judge promptly gives all parties notice and an opportunity to respond to the communications.
• Obtaining the advice of a disinterested legal expert if the judge gives advance notice to the parties of the person to be consulted and gives an opportunity to object and respond to both the notice and the advice ultimately received.
• Discussions with court staff/personnel whose job who are there to aid the judge in carrying out the judge’s functions. 
• With the consent of the parties, conferring with each party separately for settlement; and
• When specifically authorized by law.[3]

If a judge inadvertently obtains ex parte information that is not authorized and goes to the substance of the matter, the judge must notify the parties of the substance of the communication and provide an opportunity to respond.[4]      A judge must not investigate facts in a case independent of what is presented to the judge in the course of the case.  This prohibition includes doing electronic searches to discover facts.  Of course a judge is free to do independent research to determine what the proper law is – the prohibition only applies to facts.[5]

[1] ABA Rule of Professional Conduct 3.3(d)(“In an ex parte proceeding, a lawyer shall 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.”).

[2] ABA Code of Judicial Conduct, Canon 4, 2.9(D).

[3] ABA Code of Judicial Conduct, Canon 4, Rule 2.9(A)(1) – (5).

[4] ABA Code of Judicial Conduct, Canon 4, Rule 2.9(B).

[5] ABA Code of Judicial Conduct, Canon 4, Rule 2.9(C).