Judicial Conduct · 2-8% of the exam
23.4.1Ex parte communications (CJC Rule 2.9)
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- CJC Rule 2.9
Plain English
On a matter pending or impending, a judge may not initiate, permit, or consider ex parte communications, and may not investigate the facts independently — subject to the exceptions the box sets out.
Rule
CJC Rule 2.9
General prohibition: as to any matter pending or impending, the judge is barred from starting, allowing, or weighing an ex parte communication.
Five exceptions:
- Emergency, administrative, or scheduling (non-substantive): permitted if
- (a) judge reasonably believes no party gains a procedural, substantive, or tactical advantage AND
- (b) judge promptly notifies all parties of the substance and gives them an opportunity to respond.
- Written advice from a disinterested legal expert: permitted if judge gives all parties advance notice of the expert's identity and subject matter and a reasonable opportunity to object and respond. Outside this narrow permission the prohibition still reaches communications with lawyers, law teachers, and other persons who are not participants in the proceeding (cmt [3]).
- Court staff and other judges: permitted when assisting adjudicative responsibilities, provided judge makes reasonable efforts to avoid receiving off-record factual information and does not abrogate personal responsibility to decide. Two judges sit outside this permission (cmt [5]): a judge previously disqualified from hearing the matter, and a judge with appellate jurisdiction over it.
- Settlement conferences with consent of all parties: judge may confer separately with parties and lawyers.
- Expressly authorized by law or rule.
- Emergency, administrative, or scheduling (non-substantive): permitted if
Independent investigation prohibited (CJC Rule 2.9(C)): a judge shall not independently investigate facts; must consider only evidence presented and facts properly judicially noticed; includes no internet searches about contested factual matters.
Inadvertent receipt: when an unauthorized ex parte communication that bears on the substance of a matter reaches the judge by accident, every party must PROMPTLY be told what the communication contained and afforded a chance to respond.
Supervision (CJC Rule 2.9(D)): the judge must make reasonable efforts, including providing appropriate supervision, to ensure this rule is not violated by court staff, court officials, and others subject to the judge's direction and control.
Questions · 1
Q 01ch23-e06
Question 1 of 1 · Rule CJC 2.9(A)(2)
Judge is deciding a bench trial that turns on an unsettled question of insurance law that neither side briefed well. Judge telephoned a former teacher who now writes about insurance law and who has no connection to the parties, the lawyers, or the case, and spent an hour discussing how the question should be analyzed. The teacher gave that guidance over the telephone and sent nothing in writing. The next morning Judge described the call on the record, named the person consulted, summarized what was said, and offered both sides a chance to respond before ruling. May Judge consider the guidance received in that call?
Keys 1 to 4 choose.