August 14, 2018

    Model Rules for Judicial Disciplinary Enforcement

    Section II. General Provisions
    Rule 10. Ex Parte Contacts

    Members of the commission, hearing officers and commission counsel shall not engage in ex parte communications regarding a case, except that before making a determination to file formal charges in a case pursuant to Rule 17.D(2), members of the investigative panel assigned to that case may communicate with disciplinary counsel as required to perform their duties in accordance with these Rules.

    Commentary

    What constitutes ex parte communication is determined by the jurisdiction's code of judicial conduct and rules of professional responsibility. The ABA Model Code of Judicial Conduct Canon 3B(7) states:

    (7) A judge shall 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. A judge shall 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, administrative purposes or emergencies 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) A judge may obtain the advice of a distinguished 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 reasonable opportunity to respond.
    (c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.
    (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
    (e) A judge may initiate or consider any ex parte communications when expressly authorized to do so.

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