Concept
Scope of the Rule
Lawyer's duty not to communicate ex parte with the tribunal
Scope of the Rule
Rule 3.5(b) packs its whole reach into one sentence: a lawyer shall not “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.”1 Each phrase draws a line. “Such a person” fixes who may not be approached, “during the proceeding” fixes when, and “communicate” fixes what counts as contact. The text draws no line for a fourth question, who started the conversation, and that silence has consequences in practice.
The lines matter because lawyers and decision makers share a small professional world. They pass in courthouse corridors, sit at the same bar dinners, and trade papers and telephone calls every week. A rule with no limits would forbid ordinary professional life, and a rule with blurry limits would invite lawyers to persuade themselves that a given private contact was harmless. The limits sit where the danger sits. Someone with power to decide an open matter hears one side’s persuasion while the other side is absent and cannot answer. Each boundary asks whether the contact in front of you has that character.
The text asks nothing about the lawyer’s motive and nothing about whether the contact changed an outcome.2 Intent and effect are therefore not variables that set the rule’s reach, and the sections below do not treat them as such. They take up, in turn, who is covered, when a matter is pending, which forms of contact count, why good faith does not excuse a violation, and what follows when the judge opens the conversation.
Who Is Covered
“Such a person” points back to the judge, juror, prospective juror, or other official that Rule 3.5 protects.3 A judge decides the case, and jurors and prospective jurors decide it or are being chosen to help; jurors receive fuller treatment later in this chapter. “Other official” is the category that generates hard questions, because the rule lists no job titles. Its content comes from function: the person decides, or helps decide, a contested matter. The rule’s mechanism explains the choice. Private argument to such a person leaves the absent party no chance to answer before the decision is made.
Agency adjudicators fit the function test. A formal agency adjudication, like a trial in federal court, is decided on the record: the transcript, exhibits, and papers filed in the proceeding are the exclusive basis for decision.4 The reason is fairness. A participant must be able to know what evidence may be used against her and to contest it through cross-examination and rebuttal, and those rights are easily nullified if the decision makers are free to consider facts outside the record without notice or opportunity to respond.5 A private call to the presiding administrative law judge hands argument or facts from outside the record to the person who will weigh them, with no one present to rebut.
The Administrative Procedure Act adds a statutory ban that sits beside the ethics rule. Section 557(d)(1) forbids an interested person outside the agency to make an ex parte communication relevant to the merits of the proceeding to any decision maker, a group that reaches beyond the administrative law judge to agency members and to other employees who are or may reasonably be expected to be involved in the decisional process.6 Unless the agency’s own statute provides otherwise, the prohibition runs the other way too, covering contacts that agency officials initiate with an interested person outside the agency.7 It comes into play when the proceeding has been noticed for hearing, unless the agency designates an earlier time.8 A lawyer appearing before an agency adjudicator therefore faces two separate sources of prohibition. This chapter stays with the lawyer’s own conduct under Rule 3.5(b).
A binding arbitrator fits the same test. A lawyer who serves as an arbitrator, with ultimate authority to resolve the dispute alone or as a member of a panel, assumes responsibilities similar to a judge’s, including impartiality and the avoidance of ex parte communications with the parties.9 The authority to decide is what puts the arbitrator inside the rule’s concern. A private email arguing the merits to that arbitrator is the same one-sided presentation the rule forbids in a courtroom.
A judge’s staff stand in the judge’s place for the same reason. Because the staff is an extension of the judge, an ex parte communication that would be improper for the judge is improper for the staff.10 What a clerk hears about the merits can reach the judge in the next conversation, so a lawyer who spends ten minutes with a law clerk explaining why a pending motion should be granted has reached the decision maker by a side door. Clerical questions, such as when a hearing is set, belong to the housekeeping discussion below.
Rule 3.5(b) protects the person who decides, not the person on the other side. A represented opponent falls under a different rule. Rule 4.2 bars a lawyer representing a client from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless that lawyer consents or law or a court order authorizes the contact.11 That rule keeps a lawyer from interfering with the other lawyer’s relationship with the client, guards against uncounseled disclosure by a layperson, and prevents the lawyer from obtaining an admission from a represented party.12 The two rules ask different questions. Rule 3.5(b) asks whether the lawyer is reaching the person who decides; Rule 4.2 asks whether the lawyer is reaching a represented opponent. A later section compares them.
Informal rulemaking supplies the contrast with formal adjudication. The ban on ex parte communications in formal proceedings reinforces the on-the-record requirement by insulating decision makers from off-the-record discussions with interested parties. The need for the ban is sharply reduced, if not eliminated, in informal (notice-and-comment) rulemaking, because agency decision makers are free to gather information from any source when formulating a rule.13 The Costle decision took an accommodating view of such contacts, recognizing that Congress implicitly endorsed the lobbying of agencies by interested persons throughout rulemaking and that lobbying has benefits: it makes decision makers more accessible, helps affected persons avoid compliance difficulties, and expands the information on which agencies base their rules.14 The one-sided-argument harm behind Rule 3.5(b) is much weaker there, because no official is ordinarily choosing between two private parties’ claims.
That contrast is a general one and not a guaranteed safe harbor. In Sangamon Valley Television Corp. v. United States, representatives of two broadcasters privately contacted Commission members to press the case for their city of choice after the FCC published notice of a proposed station switch, and the court of appeals invalidated the rule because of those ex parte communications.15 The rulemaking amounted to awarding an exclusive broadcasting license to one of two competing applicants, and the court reasoned that basic fairness requires such a proceeding to be carried out in the open.16 The D.C. Circuit later explained that the holding reaches only rulemaking involving conflicting claims to a valuable privilege, proceedings “similar functionally to licensing via adjudication,” and not policy determinations of general applicability.17 The label on the proceeding therefore settles little. The useful question is whether a contested matter between private claimants is being decided.
When an exam stem puts a lawyer in private conversation with a government official, ask whether that official is deciding a contested matter on a record.
The two scenes involve the same lawyer and the same agency. The only moved fact is whether the person on the other end was deciding a contested matter between parties.
Pending Matter Requirement
“During the proceeding” ties the prohibition to a matter still open before the decision maker, and “ex parte” describes contact that shuts out a party with something at stake in that matter.19 Together the phrases aim the rule at private communication about a matter the decision maker has yet to finish deciding, not at every private word between a lawyer and a judge. The judicial-conduct rule has the same shape. The Model Code bars a judge from initiating, permitting, or considering ex parte communications “concerning a pending or impending matter.”20 The analysis below draws on that framing as well as on the text of Rule 3.5(b).
The limit follows from the harm. The danger is one-sided influence on a decision not yet made, and that danger needs two things: an open decision and an absent party who would have answered what the decision maker heard. Conversation unconnected to any pending matter supplies neither. It cannot move an outcome, and no absent party loses a chance to rebut. Lawyers and judges often live in the same town and belong to the same organizations, so a rule that forbade every private word between them would burden community life without protecting anyone’s right to be heard.
The lawyer, the judge, and the casual setting are the same in both versions. The moved fact is whether the conversation reached a matter pending before the judge.
That limit creates an evidentiary problem, because almost any private meeting can be described afterward as “just small talk.” The analysis therefore starts from a presumption: a private conversation between a judge and a lawyer who has a matter pending before that judge is presumed to concern that matter. The presumption follows who knows what. Only the two participants know what was said, so it places the burden of showing an innocent subject on the people with access to the facts, not on an absent opponent who cannot reconstruct the conversation. A lawyer who meets privately with the judge presiding over the lawyer’s own case cannot rely on calling the meeting social. The presumption matters when nothing shows what was discussed; a contact shown to have concerned only a dinette set needs no presumption to resolve it.
The remaining question is when a matter stops being pending. An exam stem will often tell you that the judge has already ruled and invite the inference that nothing is left to influence. The better question is whether the case has reached final disposition, because a matter stays pending until then, including while an appeal is underway. A trial judge’s ruling is a step in the matter, and an appeal can end in a reversal or a remand that returns the case to the same judge, so the outcome can still change until review is over.
The two scenes mark both edges of the requirement. The garage sale falls outside because the conversation had no connection to a pending matter. The appeal call falls inside because a ruling does not end a case that can still be reversed.
Oral and Written Contact
The verb in Rule 3.5(b) is “communicate,” and the text attaches no qualifier about medium.22 A letter, a handwritten note, an email, and a paper delivered to chambers each count as a communication to the decision maker, just as a telephone call does. The harm explains why. The danger is that a judge receives argument the opposing party has no chance to answer, and a page on the judge’s desk delivers that argument as effectively as a conversation. If the rule reached only speech, a lawyer could get the same result by switching media. The test therefore looks at whether the other side was shut out and treats the channel as irrelevant.
Students most often miss the ordinary court filing. A lawyer who files a supplemental brief on a pending motion and sends nothing to opposing counsel has communicated with the decision maker about the matter, during the proceeding, with the opponent absent. That the paper lands in the court’s file and not in an envelope addressed to the judge changes nothing. Exam stems often describe such conduct in routine procedural language (“filed a supplemental memorandum with the clerk”), which makes the filing sound harmless, so ask of any paper who received it.
Both papers are writings addressed to the same judge about the same motion. What separates them is the copy that went to the other side, which decides whether anyone was shut out. A filing served as it reaches the court gives the opponent the chance to respond that the rule exists to protect, while a letter that bypasses the opponent removes it.
The oral side of the rule shows the same line from the judge’s direction. Judicial-conduct commentary treats a remark that simply mentions the case or alludes to an upcoming hearing as possibly harmless, and locates the problem where such communications transcend idle conversation, as when they turn to the merits of the case.23 A casual encounter is where the drift usually happens, because the circumstances seem harmless and the lawyer slides into argument without deciding to make a private pitch.
Electronic channels raise no new question. A private message from a lawyer to a judge about a pending motion is a letter delivered another way, and Rule 3.5(b) treats it as one. The usual exam error is to ask whether the lawyer spoke with the judge, when the rule asks whether the lawyer communicated about the matter and whether the opponent was left out.
Good Faith Is No Defense
Read Rule 3.5(b) for what it measures. It names a communication, a recipient, a time, an absent opponent, and the lack of authorization.25 Each is a fact about what happened. Nothing in the sentence asks why the lawyer spoke, what the lawyer hoped to gain, or whether the conversation moved the judge. A lawyer who makes an unauthorized ex parte contact innocently, or without harm, has met every part of the violation. Neither sincerity nor harmlessness is a defense.
The rule is built this way because the harm is structural. The absent party loses the chance to answer what the judge heard, and the public sees a lawyer with private access to the person deciding the case. Both losses occur the moment the contact happens, whatever the lawyer’s state of mind. A party shut out of a conversation cannot answer an argument it never heard, however kindly the lawyer meant it. A motive test would also be close to impossible to administer. Only the lawyer and the judge know what was said and why, and almost any lawyer in that position can say, truthfully or not, that the purpose was innocent. A rule that excused sincere contacts would excuse most contacts. A conduct rule gives lawyers a line they can see in advance: when a matter is pending and the other side is absent, that matter stays out of the conversation.
A judicial-discipline matter illustrates the same point. A Texas judge defended her posts about a proceeding as promoting “transparency” and encouraging people to come watch, and the Texas State Commission on Judicial Conduct was unconvinced. It found the posts inconsistent with the proper performance of her duties because they cast reasonable doubt on her impartiality and violated her own admonition to jurors.26 The setting is judicial and not ex parte, but the reasoning carries over. The harm sits in the conduct, and a good reason for engaging in it does not remove the harm.
Exam fact patterns tend to build a sympathetic lawyer: a friendly social setting, an offhand remark, a lawyer who plainly meant nothing by it, and a ruling that came out the same way anyway. The stem invites the conclusion that no discipline can follow. The expected answer is that discipline can follow, because good intentions and the absence of harm answer questions the rule never asks. The one variable that does move the answer is what the conversation was about.
The lawyer’s state of mind was innocent throughout the evening and never moved. What changed was that the talk reached a matter pending before the judge. Who raised the subject is a separate question, and the next section takes it up.
Sincerity and the absence of harm may still bear on the sanction, when a disciplinary authority decides how to respond to a violation already established. They do not decide whether the rule was violated, and they do not convert the contact into permitted contact. An answer that begins “no violation, because the lawyer’s motives were good” has started with the wrong question. Run the elements, find them present, and treat the lawyer’s innocence as irrelevant to the violation itself.
Judge-Initiated Contact
The rule’s sentence asks nothing about which side opened the conversation.28 The actor it describes is the lawyer, and the conduct it forbids is the lawyer’s communicating with a decision maker about a pending matter while the opponent is absent. A lawyer who answers a judge’s private question about a pending motion has therefore communicated ex parte just as surely as one who placed the call, and the judge’s initiative gives the lawyer no shelter. The question is practical, because a lawyer is naturally reluctant to brush off a judge.
Three reasons support putting the duty on the lawyer. The harm is identical whichever of them spoke first: the absent party loses the chance to answer what the judge hears. The second reason is proof. Only the two participants know who raised the subject, so if the judge’s initiative excused the lawyer, any contact could be relabeled as the judge’s idea, and the outcome would turn on whose account of the opening words a disciplinary body believed. The third is capability. The lawyer always knows that the opposing side is absent and can decline to engage. A duty assigned to the person able to perform it, and not dependent on an unprovable sequence of words, gives the lawyer a plain instruction: keep the pending matter out of the conversation.
The judicial-conduct rules reach the same conversation from the other side. Model Code Rule 2.9 provides that a judge “shall not initiate, permit, or consider ex parte communications” concerning a pending or impending matter, so a judge who opens the subject has breached a duty of the judge’s own.29 That duty also does not depend on who started things: judges have been disciplined for communications initiated by other judges or attorneys on issues such as the merits of the case.30 Two people can each answer for one conversation, and the judge’s lapse is no answer to a charge against the lawyer. The judge’s duty is analyzed separately later in this chapter.
In practice, such contact rarely begins as an invitation to argue. A remark that merely mentions the case or alludes to an upcoming hearing may be harmless, but problems arise when the exchange moves beyond idle conversation.31 The bar association dinner in the previous section shows the failing pattern. The judge asked how seriously the lawyer meant to press the pending motion, and the lawyer’s answer supplied the communication about a pending matter that completed the violation. The same moment can go differently.
Both scenes open with the same kind of question from the same kind of judge, and the moved fact is what the lawyer said next. A lawyer who is merely approached has not violated the rule. The violation arrives when the lawyer engages on the pending matter. An exam stem that stresses that the judge raised the subject first tests whether you let the opening move distract you from the lawyer’s response.
A recurring problem shows the same pattern with more at stake: judges who approach lawyers ex parte with instructions to draft prospective orders favorable to the lawyers’ clients, for the judge to sign.32 The problem described there is the judge’s. The lawyer’s position under Rule 3.5(b) is separate. A paper counts as a communication, and a proposed order delivered to chambers is a writing to the decision maker about a pending matter. A lawyer who goes along without involving opposing counsel gives the opponent no chance to see the order or answer it, and is exposed under this rule. That the order favors the lawyer’s own client does not make the contact proper.
The safe course in both settings is the same: decline to discuss the matter, say that opposing counsel must be included, and tell opposing counsel about the approach. Telling the other side does specific work. The judicial-conduct rules treat prompt notice to excluded parties, with an opportunity to respond, as the safeguard that must accompany even an exceptional ex parte contact by a judge.33 A lawyer’s note to opposing counsel gives the excluded party the same footing. The note protects the opponent; the lawyer’s refusal to discuss the matter is what keeps the lawyer inside the rule.