Scheduling, Administrative, or Emergency Exception

The general ban on ex parte communications gives way to a narrow exception for logistics. Under Rule 2.9(A)(1), a judge may take part in an ex parte communication for “scheduling, administrative, or emergency purposes” when circumstances require it, so long as the communication “does not address substantive matters.”¹ Two provisos complete the exception. The judge must reasonably believe that no party will gain a procedural, substantive, or tactical advantage, and the judge must promptly make provision to notify all other parties of the substance of the communication and give them an opportunity to respond.² This chapter calls the package the housekeeping exception, but an exam answer should track the rule’s own words, because the three listed purposes and the bar on substantive matters decide the close cases.

The line between logistics and merits follows what the ban protects. An ex parte communication is one initiated by or with the judge about a pending or impending case that leaves out some parties or their counsel. In an adversarial system, where the judge is supposed to be a detached neutral, a private conversation with one side exposes the judge to one-sided argument and opens the door to favoritism or animus, which threatens impartiality, integrity, and independence. The rule therefore sets scheduling, administrative, and emergency contacts apart from “substantive matters,” and only substantive matters directly implicate those policy concerns.³ A call about which hearing dates are open gives the judge no argument to weigh and gives the caller no ruling to influence.

The conditions are cumulative. The judge must satisfy the opening clause and both provisos, and a contact that fails any one of them falls back under the general prohibition. The next three subsections take the conditions in that order.

Purpose and Substance Limits

The opening clause of the exception sets three requirements, and a contact must meet all three before the provisos even come into play. Circumstances must require the contact, its purpose must be scheduling, administrative, or emergency, and it must not address substantive matters.⁴

The first requirement turns on necessity. When a judge can place a joint call or send one message to everyone, circumstances do not require a one-sided contact, and the effort saved by leaving out the other lawyer does not change that. Excluding a party costs that party its chance to hear and answer what is said, and the exception accepts that cost only when something genuinely calls for it. Without the requirement, the convenience of a quick private call would swallow the rule.

Each listed purpose concerns how the court runs its business rather than how the dispute should end. Scheduling asks when something will happen: which dates are open for a hearing, or whether a conference can move by a day. Administrative covers the mechanics of the court, such as whether a filing has arrived or whether a courtroom is free that afternoon. Emergency responds to urgency. Urgency can justify a contact on short notice, but it never opens the merits.

The bar on substantive matters does the most work on exam facts, because it limits all three purposes at once. Ask what the talk is about. If it concerns when something will happen, it is logistics. If it could affect how the judge will rule, it is substance. The test follows the policy behind the ban: only talk that bears on the merits exposes the judge to one-sided argument, and so only that talk directly implicates the concerns the ban protects.⁵ A conversation about calendar dates does neither.

Settlement talks supply a useful contrast. Parties and counsel may be more candid with a judge outside the presence of the other side, and that candor can later cloud the judge’s perceived impartiality if the talks fail and the case goes to trial after the judge has received information ex parte.⁶ A scheduling contact carries no such information, by definition, and the bar on substance is what keeps it that way.

One apparent collision needs attention. Judges have been disciplined over communications on topics that include the merits, the admission of evidence, and “next steps in the proceeding,” yet scheduling concerns next steps too.⁷ The two fit together once you separate when from what. The date of the next hearing is a logistical fact. What the judge should do at that hearing, or how a pending motion ought to be handled, is substance.

The label a speaker attaches to a contact does not control the result, because the limit looks at what is actually said. A call can begin as pure logistics and change character partway through. Suppose the lawyer, having just received hearing dates, adds that the other side’s key witness cannot be believed and the motion should be easy to grant. Those remarks are argument on the merits, and the call has left the exception. A judge who lets the talk continue has joined a one-sided discussion of the merits of a pending case, and no part of the exception shelters it.

A harder version of the question arises when the judge places the call and the request sounds clerical.

Two connected reasons place the drafting request outside the exception. Whoever writes the findings chooses which facts the court will announce and which legal grounds it will adopt, and the other side has no chance to object to the draft before the judge signs it. The call also reveals the outcome to one side before the other side knows it. Recurring problems have arisen with judges who approach lawyers ex parte with instructions to draft prospective orders favorable to the lawyers’ clients, for the judge to sign.⁸ The same request sent to both lawyers at once would shut no one out, and nothing about it would be ex parte. The violation lies in the privacy of the request, and the drafting task is only the vehicle for it.

The No-Advantage Belief

The first proviso asks a different question from the substance bar. The substance bar looks at what the conversation concerned, while this proviso looks at what the conversation will do to the parties’ relative positions: the judge must reasonably believe that no party will gain a procedural, substantive, or tactical advantage.¹⁰ A call can concern nothing but a date and still hand one side something the other lacks, and then the excluded party bears the cost of the favoritism the ban exists to prevent.¹¹ The exception rests on the premise that a logistical contact leaves everyone on equal footing, and this proviso tests that premise against the facts of each contact.

The word reasonably makes the standard objective. A careful judge, knowing what this judge knew about the request and the case, must be able to hold the belief, and a sincere belief that fails that measure does not satisfy the condition. If sincerity alone sufficed, the proviso would shrink to the judge’s own declaration that no advantage was intended, a declaration available to any judge in any case. The history of these contacts also argues for a hard look. Judges have been disciplined for ex parte communications with parties, and those communications frequently benefit the party who made them.¹²

The rule names three kinds of advantage, and each catches something the other two would miss:

A procedural advantage is a benefit in how the case moves through the court, such as a continuance, an extended deadline, or a rescheduled hearing that one side obtains and the other does not.
A substantive advantage is a benefit that bears on the merits, such as an argument the judge hears from one side only.
A tactical advantage is a benefit in timing, surprise, or preparation, such as learning before the opponent when a hearing will occur and gaining a head start.

The list matters because logistical contacts seldom touch the merits directly. A rule that looked only for substantive advantage would let through every contact limited to dates and deadlines, yet scheduling decisions can shape a case as surely as a ruling can. One contact may also carry more than one kind, since a delay that gives a side extra time to prepare is procedural in form and tactical in effect. On an exam, name the kind of advantage the facts show.

A contact about a hearing date sounds like scheduling and nothing more, which is why the no-advantage condition must be run separately on facts of that kind.

A different lawyer who asks which dates are open on the motion calendar presents the opposite result.

The fact that moved the answer is whether the contact changed anyone’s position relative to the other side. In the first call the judge used control of the calendar to favor the caller. In the second the judge passed along a fact open to all and left every party where it started.

A satisfied belief completes only one condition of the exception. Even the open-dates call leaves the judge with a further duty, to make provision promptly to tell all other parties the substance of what was said and to give them an opportunity to respond.¹³ That duty is the last condition.

Prompt Notice and Response

The second proviso works after the contact rather than before it. It requires the judge to make provision “promptly to notify all other parties of the substance of the ex parte communication” and to give the parties “an opportunity to respond.”¹⁵ The purpose and no-advantage conditions screen a contact before it happens, by asking what it concerns and whether anyone will gain from it. The notice condition brings the excluded party back. A judge who has spoken to one lawyer about a hearing date has left the other side knowing less, and the rule closes that gap by requiring that the other side learn what was said and be allowed to answer it.

The condition has three separable parts, and a careful answer checks each in turn:

The notice must be prompt.
The notice must convey the substance of what was communicated.
The other parties must have an opportunity to respond.

Each part protects a different piece of the adversarial exchange the contact interrupted. Once the excluded party learns what was said, it can correct a misstatement, object to a request, and ask the judge to reconsider. A notice that satisfies two of the three parts still fails the condition.

Promptness matters because delay lets the judge act on the contact before the other side can answer. If a judge grants a rescheduling request and tells opposing counsel only after the original hearing date has passed, the notice arrives when no response can change anything. The rule says the judge makes provision for notice, which leaves room for chambers staff to send the message. The duty to see that it goes out promptly stays with the judge.

Substance matters because a party cannot respond to what it has not heard. A message saying only that chambers spoke with one lawyer reveals that a contact occurred and conceals what it contained. The omitted detail is often the very thing the other side would contest, such as the reason a lawyer gave for needing a different date.

The opportunity to respond is a separate duty from notice, and the rule uses its own verb for it. A notice that arrives together with a signed order informs the other side of a decision already made and leaves it nothing to answer. The opportunity has to be real, which means it must come at a time when a response can still affect what the judge does.

Handling that satisfies all three parts looks different on the page.

One reported decision shows what concealment costs. When a trial judge met ex parte with a panel of experts and prohibited counsel from discovering the contents of the meeting, the Seventh Circuit reversed a refusal to disqualify.¹⁶ That decision concerns disqualification rather than the text of the notice proviso, but it points the same way as the proviso. A side that is forbidden to learn what was said cannot answer it.

Notice repairs only a contact that otherwise qualified for the exception. The conditions are cumulative, because the rule permits the contact provided each one is met.¹⁷ A judge who discusses the merits with one lawyer therefore cannot cure the problem by informing the other side afterward, since the exception never applied in the first place.