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Ex Parte Communications

What is an ex parte communication?

An ex parte communication is a written or oral communication with a judge that involves only one side of a pending or imminent lawsuit. Ex parte communications include interactions by a judge with any persons interested in the outcome of a case such as attorneys, parties, jurors, witnesses, and law enforcement personnel.

Prohibition of Ex Parte Communications

Generally, ex parte communications are prohibited because they can influence the judge’s decision. They also threaten the legal principle that all parties must be given an opportunity to be heard on all matters related to the case. Any private communication between a judge and a lawyer who has a case pending before the judge is presumed to have been about the pending lawsuit.

Judicial Discipline for Ex Parte Communications

A judge is subject under the Code of Judicial Conduct to disciplinary action for ex parte communications. The fact that a judge acted in good faith is not a defense to a claim that the ex parte communications rule was violated.

Examples of Improper Ex Parte Communications

It creates the appearance of impropriety (improper conduct) for a judge to visit socially in chambers with an attorney unless attorneys for all parties in a matter before the court are present. It is also improper for a judge to have ex parte communications with the jurors in a pending case. It is an ethical violation for a judge outside the presence of counsel for all parties to meet with a hesitant witness to persuade the witness to testify.

Exceptions to the Rule Prohibiting Ex Parte Communications

There are several exceptions to the rule that ex parte communications are prohibited.

  • Ex parte communications are allowed for scheduling or administrative matters but the contact may not cover substantive matters or issues in the case.
  • Ex parte communications are permitted by law if a party seeks a temporary restraining order, a protective order, a search warrant, or some other action by the court when time for notice to an opposing party is not available.
  • A judge can consult another judge or court personnel in performing his judicial duties. However, a judge cannot speak about a pending case with another judge to whom the pending case might be appealed.
  • There are some limited circumstances in which a judge can communicate with a legal expert who has no interest in the case concerning a legal issue. However, parties in a case before the judge in which the legal issue arises should be given an opportunity to learn about and respond to the communication.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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