Standard 1(J) Ex parte communications

A judge is required to accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.

1. A judge may not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling or administrative purposes that do not deal with substantive matters or issues on the merits are authorized; provided:

(i) The judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) The judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

(b) Where circumstances require, ex parte communications for emergencies that involve substantive matters or issues on the merits are authorized, provided the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

(c) Defendants convicted of criminal or traffic offenses often have all or part of their sentences suspended upon conditions that include probation. If a defendant is alleged to have violated the terms of his or her suspended sentence or probation, the Commonwealth’s Attorney or probation officer may file a request or motion seeking the issuance of a capias, show cause order, or other process against the defendant, and a hearing to revoke the defendant’s probation and suspended sentence. For purposes of this Canon, the filing is not deemed to be a prohibited ex parte communication with the court. It is not a violation of this Canon 1J(1) for a judge to consider what has been filed in order to decide whether to issue process against the defendant, notwithstanding the fact that notice of the motion or request has not been provided to the defendant. The defendant must be given the opportunity to respond to the allegations at a hearing on the merits. If process is issued, it is recommended that copies of the documents requesting the issuance of process should be attached. This example is limited to the interpretation and application of Canon 1J(1) and is not intended to be in derogation of statutory or Constitutional requirements governing the revocation of a defendant’s probation or suspended sentence.

(d) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties a reasonable opportunity to respond. An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.

(e) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.

(f) A judge may initiate or consider any ex parte communications when expressly authorized to do so by law or by these Canons.

(g) A judge has the discretion to open and review written communications addressed to the judge or the court to determine if such communications are ex parte, and for the purpose of determining an appropriate action.

(h) A judge may consider an ex parte communication when the excluded party has waived, expressly or implicitly, its right to review the communication or to be heard.

(i) The following illustration is an example of waiver allowing consideration of an ex parte communication: When the Commonwealth has waived its right to review inmate correspondence addressed to the judge, the judge may review and act on those communications.

2. The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.

3. To the extent reasonably possible, all parties or their lawyers are to be included in communications with a judge. A judge should always be cautious with regard to the possibility of prejudice or the appearance of such when communicating with a probation officer or a similarly situated person without the involvement of all parties.

4. Whenever presence of a party or notice to a party is required, the notice is to be given to the party’s lawyer, or to the party if unrepresented.

5. A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are given the same opportunity to submit proposed findings of fact and conclusions of law, or are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.

6. A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that these standards are not violated through law clerks or other personnel on the judge’s staff.

7. If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties. However, routine communications between clerks of the trial courts and of the appellate courts or between clerks of the two appellate courts are permitted to confirm the contents of the record, the entry of orders, and other procedural issues. In such instances, the clerks need not notify the parties of these communications.

8. Judges have historically played an important role in providing instruction, advice, and mentoring to lawyers as they begin and continue to develop their practice skills. Judges should ensure that the instruction and advice they provide will not result in unfair advantage to the recipient or harm to other parties in a pending proceeding.