The Judicial Ethics of Ex Parte and Other Communications

Abstract

This Article discusses the judicial ethics of ex parte and other communications and the concerns these communications have generated through their negative effects on the judicial process. Part I examines the Model Code of Judicial Conduct standards relating to ex parte communications, the accompanying Code commentaries, and the purpose for the ethical requirement. Part II looks at which communications are prohibited, such as independent investigations by judges, and also discusses the meaning of the term "on the merits." Part III examines ex parte communications that are actually permitted: requests for help from disinterested experts, communications with other judges and with court personnel, contacts to resolve a case through mediation or settlement, judicial requests for findings of fact and conclusions of law, and ex parte contacts that are authorized by law. Finally, Part IV discusses and compares the ethical standards imposed upon lawyers regarding ex parte communications, raises questions about the consistency between the judicial and lawyers' ethical codes, and includes proposals for improving the ABA Code Judicial Conduct to assist judges, lawyers, and lay members of judicial conduct organizations in evaluating judicial disqualification or discipline.

Keywords: ethics, communication, code of judicial conduct

JEL Classification: K4, K00