5-100. Checklist

Identification

• You engage in conversation with a party, witness, attorney or other person interested in the subject matter of a case pending in your court.
  All parties are not present and absent parties did not receive notice.
  The subject of the conversation relates, either directly or indirectly, to the subject matter of the case.
  You are not authorized by law to make the communication.
  
• You engage in a conversation with any other person about the subject matter of a case pending in your court, and that person is not another judge or member of your court staff.
  All parties are not present and absent parties did not receive notice.
  The subject of the conversation relates, either directly or indirectly, to the subject matter of a pending case.
  You are not authorized by law to make the communication.
  
• Another judge contacts you to influence the disposition of a case pending in your court.
  
• You personally, or through a representative, conduct an investigation outside of court to obtain factual information relevant to a pending case.
  
• You engage in conversation with a person about a specific legal problem the person is having.
  The problem could become a case in your court.

Intervention

"I'm sorry, but we have to wait until both sides are in court."
"I'm sorry, but I'm not allowed to discuss the case with you."
"I'm sorry, but if I talk to you I may have to take myself off the case."

Prevention

• Avoid all out-of-court conversations with people involved in cases before you. If a conversation occurs, be alert if it veers toward the subject of the pending case.
  
• Do not engage in ex parte communications even if you think the conversation will aid disposition of the case, help a reluctant witness, or improve your knowledge about the subject matter.
  
• Be careful about discussing potential cases with attorneys and members of the public. If the matter comes before you later, you may have to recuse yourself.
  
• Institute procedures in your court to minimize the opportunity for ex parte communications:
  >>Avoid answering the telephone at your office.
  >>Don't accept calls at home relating to your judicial duties.
  >>Have court staff "run interference" between you and the public.
  >>Train court staff about the effect of ex parte communications.
  >>Avoid opening your own mail.
  >>Do not correct technical errors in orders without giving notice to all parties.
  
• Discourage social visiting in chambers that creates opportunities for ex parte communications.
  
• Avoid private social activities that will bring you into close contact with parties, witnesses or attorneys involved in pending cases.
  
• If recusal is necessary, do so promptly. See AJS ETHICS TRAINING at 6-7.

5-200. Applicable Law.
NMRA 21-200 and 21-300(B)(7).

5-300. Introduction.
"Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant. Even the most vigilant and conscientious of judges may be subtly influenced by such contacts." Rose v. Florida, 601 So. 2d 1181 (Fla. 1992). A judge's dilemma is remaining fair and unbiased while administering the court and living in the community.

5-400. General rule.

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. NMRA 21-300(B)(7).

This rule is subject to certain exceptions described below.

"Ex parte" means "one-sided." An ex parte communication is any communication:

1. involving less than all the parties who have a legal interest in the case; and
2. is either oral or written; and
3. is about a pending or impending case; and
4. is made to or by the judge presiding over the case. AJS, ETHICS TRAINING at 9.

The principles of fairness, impartiality, and the importance of maintaining public confidence in the judiciary underlie the prohibition against ex parte communications. Therefore, ex parte communications have subjected judges to discipline under both a specific rule, NMRA 21-300(B)(7), and the general requirement of avoiding the appearance of impropriety, NMRA 21-200.

5-500. Scope of Rule.

5-510. Persons. 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. Commentary to NMRA 21-300. An ex parte communication can be initiated by either the judge or another person. Incidental contact between a judge and a party or attorney does not violate the rule as long as a case is not discussed.

Note that a communication with a single party by definition is not ex parte if there is only one party to the case. Therefore, a probate judge in an informal, and therefore uncontested, proceeding is not precluded from discussing procedural requirements with the petitioner.

5-520. Subject matter. Ex parte communications can occur regarding both pending and impending proceedings, until all appeals are completed or the time for filing an appeal has expired. A general discussion of law unrelated to a case pending before the judge is not prohibited; however, the communication can violate the prohibition even if it does not address the ultimate merits of the case.

5-530. Negative repercussions of ex parte communications.

• An ex parte communication can result in bias because the absent party does not have an opportunity to respond.
  
• A judge may be influenced by the communication without realizing it.
  
• The judge may receive inaccurate information as a result of the communication.
  
• Even if the communication does not result in bias or misinformation, its occurrence destroys the court's reputation for impartiality and creates an appearance of impropriety.
  
• The judge who engages in ex parte communications may be seen in the community as being open to improper influence, affecting her credibility.
  
• Even the appearance of an ex parte communication makes the litigant feel cheated.
  
• A judge can be disqualified from a case because of an ex parte communication, which disrupts the judicial process and encourages forum shopping.
  
• The judge can be disciplined for the communication.
  
• Practical remedies are few.

AJS ETHICS TRAINING at 9; American Judicature Society, AJS JUDICIAL CONDUCT AND ETHICS CURRICULUM, Ex Parte at 9 (1993) [hereinafter AJS, Curriculum.]

5-600. Permitted ex parte communications. Not all ex parte communications are prohibited. NMRA 21-300(B)(7)(a) through (e) lists allowable communications.

5-610. Communications authorized by law. Communications authorized by law, such as issuance of temporary restraining orders, protective orders and search warrants are permitted. Entry of a default judgment (or certain other actions taken in court in the absence of a party) is not ex parte if the absent party has received prior notice of the proceeding. NMRA 21-300 (B)(7)(e).

5-620. Communications with judges and court personnel. The rule against ex parte communications does not preclude a judge from consulting with other judges or with court personnel whose function is to aid the judge in carrying out his adjudicative responsibilities. NMRA 21-300(B)(7)(c). Lawyers in a proceeding before the judge are not "court personnel," even if the lawyer is assigned to a judge's courtroom regularly.

5-621. Scope of exception. This is a narrow exception. A judge may ask another judge for clarification of a point of law, but cannot delegate her judicial responsibility to decide the case.

5-622. Cases pending on appeal. The exception does not permit communications with judges having appellate jurisdiction over a pending case.

A trial judge violated the Code by sending inappropriate letters to the attorney general and a supreme court justice in connection with a murder case he had tried. After his decision was reversed by the state supreme court, the judge wrote to the attorney general asking him to petition for rehearing. He then wrote to a dissenting justice to express approval of the justice's minority position, stating he hoped the court would give serious consideration to the petition. Harrington v. Indiana, 584 N.E.2d 558, 560-61 (Ind. 1992).

5-623. Influencing other judges' decisions. Under no circumstances does a judge have authority to contact another judge in order to influence the disposition of a case pending before that judge.

5-624. Court personnel.

5-624a. Probation officers. Probation officers act as "court personnel" in preparing presentence reports. Factual inquiries about a probationer's status usually are not ex parte. AJS CURRICULUM, Ex Parte at 5.

A judge's ex parte contact with a probation officer about an error in sentencing was not improper because the error in question was technical and the communication did not include information absent from the presentence report. People v. Smith, 378 N.W.2d 384, 394 (Mich. 1985).

However, a communication with a probation officer could be improper if the judge receives information that the defendant does not know has been conveyed to the judge. If this happens the judge should give the defendant the opportunity to respond.

A federal judge did not have to resentence the defendant because the judge conveyed to the defendant the facts received from the probation officer. Resentencing would have been required if the judge had relied on the additional facts and not disclosed them. U.S. v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985).

5-624b. Improper contacts. Parties, especially pro se litigants, frequently try to reach the judge through court staff. Court personnel should be instructed not to relay inappropriate information to the judge. Proper training of staff is part of a judge's administrative responsibilities. See ADMINISTRATIVE DUTIES.

It was improper for a judge to take into consideration material that had been presented to him by a prosecutor through the judge's courtroom clerk, without making it available to the defendant. California Comm’n Annual Report, 1991; see also AJS, CURRICULUM, Ex Parte at 13.

5-630. Communications with legal experts. The Code permits communications with experts on the law, under limited circumstances.

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 reasonable opportunity to respond. NMRA 21-300(B)(7)(b).

A "disinterested expert" is a person who "has no connection with any party or participant in [the] lawsuit." Shaman, supra, §6.07 at 37. Note that the expert opinion allowed by this rule must concern a legal issue and the parties must have an 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 him to file a brief amicus curiae. Commentary to NMRA 21-300. Separate rules apply to the qualification of expert witnesses on factual issues.

5-640. Scheduling and administrative matters. Under the newly adopted rule, ex parte communications are allowable where circumstances require for scheduling, administrative matters, or emergencies, under several severe conditions. NMRA 21-300(B)(7)(a). These conditions include that the communications must not deal with substantive matters or issues on the merits; the judge must reasonably believe that no party will gain a procedural or tactical advantage by the communication; and if such an advantage might reasonably be perceived, the judge must provide for notice of the substance of the communication to all other parties. Even if all of these criteria are met, however, ex parte communications are still generally discouraged. Commentary to NMRA 21-300 (B)(7).

5-650. Settlement discussions.
The revised rule now also permits a judge to confer with the parties and their lawyers to attempt to mediate or settle matters pending before the judge, if the parties consent. NMRA 21-300(B)(7)(d). This rule allows the judge, in these rare circumstances, to meet separately with the parties with their consent. Commentary to NMRA 21-300. But ordinarily such meetings should include both parties.

5-700. Good faith or non-lawyer status not a defense. The importance of maintaining the impartiality of the courts outweighs the judge's ignorance or good faith in making the communication. Good faith is not a defense to a charge of violating the rule against ex parte communications. The fact that a judge is not a lawyer is not a defense.

A judge's ex parte communications with litigants or lawyers in child custody cases violated the Code, despite strong evidence of the judge's overwhelming concern for children's welfare, which motivated the communications. In re Sturgis, 529 So. 2d 281, 283 (Fla. 1988).

Several judges received letters of caution advising them about ex parte communications and in particular those meetings or conversations that might give the suggestion of being ex parte. Judges should avoid the very appearance of wrongdoing even when the judge might be seeking to further the cause of justice in good faith. JSC 89-I2.

5-800. Typical Circumstances.
Some ex parte communications are blatantly improper, and many occur out of ignorance. Many members of the public simply do not understand that a judge cannot discuss any aspect of a pending case outside of court. This problem is compounded when the judge is a friend or neighbor.

Judges are members of the community, and rural and small town judges in particular frequently will run into parties who will be tempted to talk to the judge about their cases. . . . As soon as you realize that an ex parte communication is about to be made, you must end the conversation even if you appear to be discourteous. AJS, ETHICS TRAINING at 9.

Ex parte communications can occur in any situation in which the judge interacts with persons interested in the outcome of a case, including but by no means limited to the following.

5-810. Communications with attorneys. The daily interactions between judges and attorneys create the ideal setting for ex parte communications, or at least for their appearance. These communications can range from outright discussion of the merits of a case to granting a request for a continuance without notice to the other party.

5-811. Preparing orders. The language of orders and decrees should be discussed with all attorneys present, or should be communicated in writing by the trial judge to all attorneys. Discussions about the language to be used in an order should include all parties; otherwise, the risk of prejudice is substantial. See Medical Arts Clinic, P.C. v. Henry, 484 So. 2d 385, 388 (Ala. 1986).

The defendant in a murder case filed a motion for post-conviction relief, and the trial judge adopted the state's proposed order denying the motion without giving a hearing to defense counsel. The Florida Supreme Court noted that the practice of asking only one party to prepare an order without involving the other side is timesaving, but "is fraught with danger and gives the appearance of impropriety." Rose v. Florida, 601 So. 2d 1181, 1183 (Fla. 1992)

It is preferable to correct a drafting error in an order pointed out by one side only after giving the other side appropriate notice of the proposed change. Judicial Conduct Comm'n v. Wilson, 461 N.W. 2d 105, 109 (N.D. 1990).

One party can prepare an order if the other side has opportunity to object to the form of the order.

It is acceptable for a judge in open court to instruct the prevailing party to prepare an order reflecting the ruling and serve it on the other side, then to enter the order without changes. AJS, CURRICULUM, Ex Parte at 13.

5-812. Special meetings. Judges should discourage practices that appear to favor lawyers over litigants, or certain lawyers over others.

A California municipal judge had a practice of visiting socially in chambers with favorite attorneys on days they appeared before him in court. It was not established that pending cases were discussed on those occasions, but the practice created at the least an appearance of impropriety. Kennick v. Comm’n on Judicial Performance, 787 P.2d 591, 609 (Cal. 1990).

5-813. Improper communications with prosecutors. Under no circumstances may a judge ask a prosecutor to dismiss a case.

5-820. Communications with parties.

5-821. Potential for abuse. Ex parte communication with a litigant greatly increases the likelihood of bias and opportunities for improper disposition of cases.

A municipal judge, who communicated privately with police, through conversations and a system of drawings on citations, about the demeanor and behavior of traffic defendants appearing before the judge, was reprimanded and assigned a mentor district judge. JSC 01-F4.

The Judicial Standards Commission petitioned the Supreme Court to remove a magistrate judge for numerous alleged acts of misconduct in office, including dismissing DWI and other cases of friends and relatives, without notice to the prosecutor, based upon ex parte communications, and even though some of the cases had been assigned to other judges. In re Angie Vigil-Perez, NM Supreme Court Nos. 99-15 and 99-70.

An inexperienced lay judge was disciplined for finding defendants not guilty without a trial. The fact that the judge's predecessor had established these and other improper practices did not excuse the misconduct, and his inexperience and generally good intentions were not mitigating factors. In re Seal, 585 So.2d 741, 745-46 (Miss. 1991)

A New Mexico magistrate was disciplined for modifying a judgment based on an ex parte conference with defendant. JSC 84-F.

A judge who accepted a guilty plea in chambers without the district attorney receiving notice and being given an opportunity to be present engaged in an improper ex parte communication. In re Edens, 226 S.E.2d 5, 7 (N.C. 1976).

5-822. Impending proceedings. Prohibited ex parte communications pertain to "impending" as well as "pending" proceedings. This prevents litigants from judge-shopping before the case is filed to determine how a judge might rule in a case. AJS, CURRICULUM, Ex Parte at 2.

A trial judge participated in a meeting of the community child protection team to consider facts supporting a petition in a child in need of services matter. This was a classic example of prohibited ex parte communication: a prospective litigant discussing possible evidence in the presence of a judge who would hear the case, and without the other party present. Stivers v. Knox County Dep't of Pub. Welfare, 482 N.E.2d 748, 751 (Ind. App. 1985)

A magistrate received a letter of caution for having entertained a potential litigator in his office and discussing a problem which he had reason to believe could become the subject of a future case before him. JSC 91-I5.

5-823. Discussions about legal representation. It is improper for a judge to discuss the quality of a party's legal representation.

A juvenile court judge attempted to discuss the legal representation of a mother in a dependency proceeding with her without her counsel present. S.S. v. Wakefield, 764 P.2d 70, 72 (Colo. 1988).

A judge should not discuss with a party the party's desire to discharge an attorney and seek new counsel. Any discussion of this issue should be in court, with all parties present. Maneikis v. State, 411 N.E.2d 669 (Ind. App. 1980).

5-830. Communications with others.

5-831. Jurors. Ex parte communications with jurors about a case at any stage of the proceedings is an ethical violation. Although it is not an ethical violation to discuss a case once it is completely concluded, including any appeal, the judge should make sure that any comments she makes do not reflect adversely on her impartiality.

5-832. Witnesses.

It is improper for a judge to meet with nervous witnesses to encourage them to testify. California Commission, 1991 Annual Report; see also AJS, CURRICULUM, Ex Parte at 13.

5-833. Law enforcement personnel.

5-833a. As experts. Judges, especially in courts of limited jurisdiction, have frequent contact with law enforcement officers. These officers often try their own cases and are well versed in the law of certain types of cases. Judges must resist the temptation to treat police officers as outside consultants. Under no circumstances may a judge discuss a case with an officer who is prosecuting or serving as a witness in the case.

An Arizona judge was censured for obtaining advice from police officers. The judge telephoned the officers from the courtroom. In re Anderson, 814 P.2d 773 (1991).

5-833b. To influence outcome. A judge may not respond to an officer's attempt to obtain a conviction for reasons other than the evidence presented in court. Conversely, the judge may not intercede to get charges dropped or initiate prosecution of charges.

A Maine judge got an officer to file charges against a young man for squealing tires and caused the complaint to be rescheduled so he could discourage such conduct. In re Ross, 428 A.2d 858, 864 (Me. 1981).

5-840. Independent investigation by judge.

5-841. Prohibition. A judge may not act as an independent fact-finder in a case. Her decision must be based only on evidence presented in court. The judge may not interview outside witnesses or talk to outside experts, even in the honest belief that the information obtained will be helpful to the judge. A judge also is prohibited from conducting investigations to fill gaps in the court record. Independent investigations can result in serious bias, particularly in a bench trial. Consequently, a judge who gains information about disputed evidentiary facts from sources outside the courtroom can be disqualified under NMRA 21-400(A).

A judge should have recused himself after conducting an ex parte pre-sentencing inquiry into the defendant's background. State v. Emmanuel, 768 P.2d 196, 197-98 (Ariz. 1989). The defendant had stolen money while employed by the county court. The judge imposed a prison term, although the probation officer had recommended probation. Before sentencing, the judge had personally contacted former employers to obtain information not included in the presentence report.

Before ordering restitution, a judge contacted two friends in the jewelry business to confirm defendant's statements that his income as a jewelry salesman was highly seasonal. These were improper ex parte communications even though no actual bias was shown. "Even where there is no actual bias, justice must satisfy the appearance of fairness." State v. Romano, 662 P.2d 406, 407 (Wash. Ct. App. 1983).

A judge cannot ask others to conduct the investigation for him.

A judge's decision to send his law clerk to view a machine that was the subject of a breach of contract suit resulted in a motion for disqualification. The clerk's viewing of the machine without defense counsel present created a presumption of prejudice in favor of the party controlling the machine, because defendant could not rebut any off-the-record information received at the viewing. ". . .[A] judge may not direct his law clerk to do that which is prohibited to the judge." Price Brothers Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir. 1980).

5-842. Permitted investigation.

5-842a. In-court questioning. A judge is allowed to question witnesses directly during a court proceeding to elicit or clarify testimony. The judge must ensure that his questioning is non-adversarial. See DEMEANOR AND IMPARTIALITY.

5-842b. Judicial notice. The Rules of Evidence permit a judge to take judicial notice in court of certain facts not in evidence that are either generally known in the community or easily verifiable. NMRA 11-201.

5-900. Abuse and prevention

5-910. Misuse of authority. Ex parte communications initiated by judges may amount to misuse of judicial authority.

A New York judge acted as a collection agency for local businesses. He wrote to alleged debtors on court stationery, spoke about pending cases with litigants, and in several instances collected disputed debts by intimidation. The judge was removed from office for prejudging cases on the basis of ex parte information and thereafter denying the litigants their right to be heard. In re Mayville, Unreported Determination (N.Y. 1984). Shaman, supra, §6.04 at 155.

A trial judge telephoned the president of a corporation involved in a pending case. The judge claimed he called to ensure that the president would be present at the next hearing, but the president interpreted the call as an attempt to get the company to change its position in the case. The court found that the motivation was irrelevant, because the mere fact that the call was made is a violation of the Code. These "routine" types of ex parte communications can expose the court system in general, and the individual judge in particular, to precisely the types of charges that the Judicial Conduct Code is designed to prevent. In re Kaufman, 416 S.E. 2d 480 (W. Va. 1992).

A Metropolitan court judge was cautioned to avoid ex parte communications and to avoid assuming the role of law enforcement officer by calling the litigant and personally reiterating the judgment order. JSC 93-I2.

A California municipal judge engaged in willful misconduct by writing an unsolicited note to another judicial officer regarding attorney's fees in a case from which the judge had been disqualified. Gubler v. Comm’n on Judicial Performance, 688 P.2d 551, 566 (Cal. 1984).

5-920. Avoiding the risk. Judges should avoid situations that can increase the risk of ex parte communication.

A New Mexico magistrate received a letter of caution instructing him to avoid the appearance of impropriety by refraining from being present during supervision of persons convicted by the judge outside the judicial complex, thereby preventing any ex parte communications between the judge and defendants attending meetings in the probation department who may not yet have had their cases adjudicated. JSC 93-I7.

5-930. Remedies. If an ex parte communication occurs, and the judge is biased as a result, the judge should recuse herself from the case. See DISQUALIFICATION. The judge may be able to avoid stepping down, however, by promptly disclosing the communication to the parties and holding a hearing at which the previously absent party can respond. If the judge is satisfied that any prejudice has been corrected, she may continue to hear the case.

During a criminal trial, a co-defendant sent two letters to the trial judge that strongly implied that the defendants were involved in the crimes charged, and made negative comments about the other defendant. After consulting with other judges about what to do, the judge immediately informed all counsel about the letters, furnished copies, and asked for the defendant to stop sending letters. These actions were proper, and the trial record did not reveal any prejudice on the judge's part resulting from reading the letters. State v. Perkins, 686 P.2d 1248, 1255-56 (Ariz. 1984).

5-1000. Related topics
Disqualification
Demeanor and Impartiality

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