Resisting Ex Parte Temptation

Authors

Cynthia Gray

Date of this Version

2021

Document Type

Article

Citation

Court Review - Volume 57

Comments

Used by permission.

Abstract

The Model Code of Judicial Conduct provides: “A judge shall not initiate, permit, or consider ex parte communications . . . concerning a pending or impending matter.”¹ Despite the Latin term, the prohibition is pretty straightforward, based in a common-sense understanding of fair play that gives all litigants the same opportunities to persuade the decision maker, with no private earwigging. The concept is so fundamental that a judge’s impartiality may be questioned, and their decision may be reversed, based on ex parte communications.

The simplicity of the rule notwithstanding, judges violate it and are sanctioned for those communications every year. Moreover, while the prototype for an ex parte communication may be someone accosting a judge at a gas station or in the courthouse—and those scenarios do happen²—in numerous cases, it is the judge who starts the conversation.³