Other Exceptions Under Rule 2.9(A)

Rule 2.9(A) states a flat ban on ex parte communications about pending or impending matters and then qualifies it with the words “except as follows.”¹ The scheduling, administrative, or emergency exception you just studied is the first item on that list, and it covers logistics, never substance.² Four more exceptions follow. A judge may take written advice from a disinterested legal expert, consult court staff and other judges, confer separately with the parties in settlement talks, and act on any ex parte communication that other law expressly authorizes.

Each of the four meets a different need in the way judges decide cases: help with a hard question of law, the daily work of chambers, the push toward settlement, and procedures that another source of law has already created. Each also carries its own safeguard. The expert exception demands advance notice and a writing, the staff exception limits what chambers may bring in, the settlement exception demands consent, and the last borrows whatever safeguards the authorizing provision supplies. Test a contact against the exception it claims and no other. A settlement conference measured against the scheduling exception's duty of prompt notice is judged by a condition the rule never imposed on it.³

One purpose explains the whole structure. Our adversarial system entitles each party to be heard before a neutral magistrate so that both sides of the case are presented in balance, and an ex parte contact ordinarily destroys procedural fairness and undermines public confidence in the judiciary's impartiality.⁴ Each exception answers that concern differently: with notice and a writing, with a conversation that stays inside chambers, with the parties' consent, or with a procedure that another rule has already approved. A contact that misses an exception's terms falls back under the general ban.⁵ The sections below take the four exceptions in the order the rule lists them.

Disinterested Legal Experts

When the briefs leave a legal question open, a judge may turn to an outside scholar, but only on the rule's terms. The judge may obtain the written advice of a disinterested expert on the law applicable to the proceeding if the judge gives the parties advance notice of the person to be consulted and of the subject matter of the advice sought, and affords them a reasonable opportunity to object and respond to the notice and to the advice received.⁶ Four features carry the rule:

The adviser is disinterested, an expert on the law with no stake in how the case comes out.
The advice is written.
The judge gives advance notice of both the person to be consulted and the subject of the advice.
The parties have a reasonable opportunity to object and respond, to the notice and to the advice.

These experts do not testify, so they are not witnesses per se, yet they inform the court's analysis of the governing law in much the way expert witnesses inform a fact-finder's analysis of the facts. The peril is similar: a biased legal expert could influence the judge outside the presence of the lawyers and parties, which is why the rule requires notice of the consultation and an opportunity to respond.⁷

Each feature closes a gap that a private consultation would otherwise leave open. Disinterest screens the source, because an adviser with a stake could slant the advice. Advance notice lets the parties check that screen for themselves: they learn who will be consulted and what question the judge will ask, and a question can be framed to lean toward an answer. The writing gives them a document to read and answer, where an oral exchange would leave them only the judge's memory of it. The opportunity to object and respond attaches to both the notice and the advice, so a party can challenge the choice of expert before the consultation and contest the advice after it arrives.⁸

Timing separates this exception from the scheduling exception. There the judge makes provision promptly to notify the other parties of a contact that has already happened.⁹ Here the parties hear first, while the judge can still change course in response to an objection. A judge who consults first and discloses later has missed the exception, however complete the later disclosure.

The exception also confines itself by subject. The expert advises on the law applicable to the proceeding and on nothing else. Judges have been subject to sanction for communications with witnesses, including victims, outside the presence of parties and counsel, and the expert exception does not reach that conduct, since the expert addresses law only.¹⁰ A later section takes up the judge's separate duty not to investigate the facts independently.

Compare a procedure that follows the rule.

Remove any one feature and the consultation falls back under the general ban: a memo requested without notice, advice delivered by telephone, an adviser with a stake in the outcome, or a question about facts.¹¹ Because the exception is built from its own words, check each feature in turn.

Court Staff and Other Judges

Judges talk cases through with the people who work beside them, and the rule permits it. A judge may consult court staff and court officials whose functions are to aid the judge in carrying out adjudicative responsibilities, and may consult other judges, on two conditions: the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and the judge does not abrogate, meaning give away, the responsibility personally to decide the matter.¹³ The permission is broad and the conditions are narrow, and each condition blocks a different way for a consultation to go wrong.

The permission rests on a simple idea: the judge's staff are an extension of the judge, much as a lawyer's staff and colleagues count as part of the lawyer for purposes of the attorney-client privilege.¹⁴ A conversation with a clerk is therefore not a contact with an outsider, and no side's argument has entered chambers. The consultation takes place inside the judge's own deliberation, where no party has lost a chance to respond.

The first condition keeps chambers from becoming a back door for facts. A judge who may not gather facts personally could otherwise send someone else to do it, and facts gathered privately reach the judge untested by either party. Price Bros. v. Philadelphia Gear Corp. shows how a court responds. The appellant alleged that the district judge had sent his law clerk to gather evidence, which would require disqualification. The Sixth Circuit observed that “not every ex parte communication to the trial court requires reversal,” but found the allegation serious enough to remand so that its truth could be determined.¹⁵ The appellant sought disqualification of the judge although a clerk was the one gathering, a reminder that staff act as the judge's extension.

The two chambers conversations involve the same office and the same judge-initiated request, so who was consulted cannot separate them. What separates them is what the consultation brings back: law and record material in the first, observations from outside the record in the second. Ask that question of every staff consultation on an exam. The word reasonable matters here, because the rule demands efforts and not guarantees. A judge who tells staff to confine their work to the law and the record, and enforces the limit, has made reasonable efforts even if a stray fact slips through. A later section covers inadvertent communications and what the judge owes the parties when one occurs.

The second condition addresses a different risk: consultation can slide into delegation. The parties came before this judge, and this judge answers for the ruling. A clerk or colleague who supplies analysis is not accountable in that way, so the judge may gather input but must not abrogate the responsibility personally to decide.¹⁶

The same permission and limits cover consultation with other judges. A colleague who explains how she has handled a recurring legal question supplies input. A colleague who adds a fact about a party from personal knowledge supplies non-record information, and a trial judge who adopts a colleague's ruling wholesale has given up the decision. The colleague should also not be a judge who is disqualified from the case or who may review the matter on appeal.¹⁷ A reviewing judge who had discussed the case in advance would later review a decision shaped by input the losing party never saw.

The standard binds staff in their own right. Because the judge's staff are an extension of the judge, an ex parte communication that would be improper for the judge is improper for the judge's staff.¹⁸ A clerk who telephones the plaintiff's lawyer to ask how a pending motion should come out has done what the judge could not do directly. Without that rule, the ban would disappear through delegation, which is why the judge's duty to supervise staff, covered in the last section of this chapter, belongs in Rule 2.9.

A judge who sits down with one side to discuss a pending case commits the ex parte communication that Rule 2.9(A) forbids, unless the exception for settlement talks applies. With the consent of the parties, a judge may confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.²⁰ The word separately shows what the exception is written for: a judge in the room with one side while the other waits elsewhere.²¹ Earlier exceptions came with prompt notice, or advance notice and a writing. The safeguard here is agreement.

Settlement talks are a setting where private conversation does real work. Parties and their lawyers may be more candid, and more willing to make concessions, with a judge when the opponent is not listening.²² A lawyer will seldom admit in front of the other side that a claim has a weak point or that the client would take less than the demand, because the admission hands over leverage. Said privately to a judge, the same admission shows the judge where each side could realistically end up. A separate meeting with each side produces the information a settlement needs.

The candor that makes the conference useful is also what the ban was written to control. One side tells the judge things the other cannot answer, and the judge may be shaped by what was said. Consent changes who bears that risk: the parties the ban protects decide for themselves to accept it in return for a chance at settlement. Agreement from one side does not do this work, because the side nobody asked is the side that loses its chance to respond. A good motive cannot fill the gap either. Nearly every judge who convenes such a meeting wants the case settled, and the rule asks whether the parties agreed.

Consent makes the conference proper, but it does not end the judge's exposure if the talks fail. A judge who has heard each side's candid assessments and concessions in private, and who then presides at trial, may appear less impartial to some observers, since the judge carries into the courtroom information the other side never heard.²³ The conferences remain permitted, and the lingering concern about perceived impartiality is a separate question that a party may raise once settlement efforts collapse. An exam answer on a failed settlement effort should say that the conferences were allowed and then flag the impartiality concern, rather than treating consent as the end of the analysis.

Authorized by Law

The last exception fits in one sentence: a judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so.²⁵ The four exceptions before it each describe a kind of contact and attach a safeguard. This one describes no contact at all. It points outward to another provision, such as a procedural rule or a statute, and says that where that provision already allows a contact without the other side, the conduct rule does not forbid the judge to follow it. Whatever safeguards the contact needs are those the authorizing provision supplies.

The reason for deferring is that someone else has already made the hard choice. A procedure that lets one side go to the judge alone reflects a decision that, in a defined class of proceedings, fairness is better served by acting without the other side than by waiting for it. If the conduct rule reopened that decision, a judge who followed the procedure would violate the code for doing what the procedure directs. The word expressly keeps the deference from spreading. It demands a provision a party could point to, with text that permits the contact, rather than the judge's own sense that a private word would be sensible. Without that limit, every informal habit could be offered as permission, and the ban would be empty.

The exception is intended as a general catchall, and it has acquired specific relevance in the so-called problem-solving or therapeutic courts movement.²⁶ The standard illustration, though, is the emergency restraining order. Under narrow circumstances, such as when a party seeks one, a lawyer may be permitted to appear before a judge without the opposing party present.²⁷ The lawyer-side rule runs in parallel: Rule 3.5(b) of the Model Rules of Professional Conduct bars a lawyer from communicating ex parte with a judge unless authorized by law or a court order.²⁸

The authorization is only as wide as the provision that grants it. A rule that lets a judge hear a restraining-order application alone does not, unless it says so, let the judge talk privately with the same lawyer about how a later preliminary-injunction hearing should come out. That conversation has no provision behind it, and the general ban returns.

The problem-solving court setting makes the point concrete.

An exam stem may add that a practice is long-standing, and the question then becomes whether habit can do the work of law.

The text supports that answer. Expressly calls for a source that can be read and checked, while a custom is unwritten, varies from courthouse to courthouse, and is familiar mainly to the regulars. The people it leaves outside, such as an out-of-town lawyer or a self-represented party, lose the chance to respond that the general ban protects.²⁹

The lawyer who proceeds ex parte under such authority takes on a duty of her own. She remains an advocate even in an ex parte proceeding, but commentators explain that only “[o]nce counsel has made full disclosure of all material facts, [is] she . . . of course free to argue the case with full vigor.”³⁰ The absent party cannot supply the other side of the story, so the lawyer must disclose the material facts, favorable or not.