Discussing Pending Case With Other Judge

August 3, 1998

CJE Opinion No. 98-10

You have asked for the Committee's advice concerning a case pending before your court in which central issues presented for your decision are pending also before a judge of another department of the Trial Court, in a case involving the same parties, the same counsel, and the same underlying dispute. Reflecting on the inefficiency of having two separate judges ruling on the same issues, involving the same parties, with possibly conflicting results, you have asked whether you may, consistent with the second sentence of Canon 3(A)(4) of the Code of Judicial Conduct (Rule 3.09 of the Rules of the Supreme Judicial Court), discuss with the judge in the other department (a) the merits of the common issues presented by your respective cases; or (b) if not the merits then at least "the parameters" of the respective decisions with the idea of achieving a uniform result and the efficient utilization of judicial resources. One of the parties objects to your conducting discussions on either basis with the other judge. As a result you have resolved to proceed with trial in the case pending before you, and you have limited yourself to a courtesy call to the other judge to inform him that you are doing so. You did not, in that conversation, discuss with the other judge the merits of either of the pending cases and you do not know whether he will proceed simultaneously with the case pending before him.

The canon relative to ex parte communications, Canon 3(A)(4), was adopted in December, 1972, based on the similarly numbered provision that had been adopted on August 16, 1972, by the House of Delegates of the American Bar Association, as part of its model code of judicial conduct. The ABA canon, together with the reporter's commentary, read:

"A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, [and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the persons consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.] (brackets added)."

Commentary

"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. It 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.

"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."

In promulgating the Massachusetts Code of Judicial Conduct, the Supreme Judicial Court replaced the bracketed material in the canon with a new sentence, so that the Massachusetts version of Canon 3(A)(4) reads:

       "A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. He should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application."

The ABA model code provision was subsequently amended, in August, 1990, but the Massachusetts provision has remained as it was originally promulgated in 1972. (1)

The differences between the 1972 ABA canon and the Massachusetts canon, do not, in our review, affect the answers to the questions you ask. Your questions do not concern discussions with experts, which are permitted by the 1972 ABA canon subject to disclosure, but rather discussions with a fellow judge, about which the texts of both canons are silent. The 1972 ABA canon was, however, meant to be read with the commentary, which expressly permitted a judge to consult "with other judges, or with court personnel whose function is to aid the judge in carrying out his adjudicative responsibilities." Nothing in the text of the Massachusetts canon as adopted in December, 1972, suggests an intent to deviate from that important qualification to the text of the canon. As a general rule, therefore, we conclude that a judge may discuss with his or her fellow judges and with such court personnel as its clerks and law clerks, cases that are pending before the judge for decision, on the basis of the record in the case.

The last qualification is important. The canon's principal provision underscores the judge's duty to accord to parties and their counsel "full right to be heard according to law." That right presupposes that the case will be decided on the basis of the facts as set out in the record of pleadings, exhibits, and testimony adduced by the parties -- not on the basis of factual information learned by the judge without the knowledge of the parties, and without giving them an opportunity to respond. (2)

The question you have asked, however, presents an anomaly that, in our view, limits the scope of permissible discussions between you and the other judge who is sitting on the related case between the same parties. The two cases are separate cases, although they arose from the same underlying dispute; and, although the separate cases involve common issues of fact and law, each of you will be called upon to make your findings and rulings based on the separate evidentiary records that the parties develop in the respective cases. Both for that reason and for the reason that findings and rulings may turn on matters of credibility or judgment, it is not inconceivable that the common issues of law or fact may properly be decided differently in the two courts. While discussion of the merits between you and the other judge could avoid those diverging resolutions, consistency would come at the cost of violating the fundamental principle that cases must be decided on the basis of the record and proceedings in open court, free of extraneous influences. Matter of Markey, 427 Mass. 797, 808 (1998). Although it would be theoretically possible for you and the other judge to discuss the merits of the cases without being influenced in your separate decisions, under Canon 3(A)(4) the parties, in our view, are entitled not to have you and the other judge exposed to the natural, human temptation to shade your respective decisions to avoid conflicting results. A discussion of the merits between you and the other judge presents the same dangers as would your talking with one who has personal knowledge of the facts of the case.

Without violating the canon, however, there may be room for discussions between you and the other judge with respect to purely procedural matters involving the handling of the two cases. The obvious ones are conflicts of scheduling, arising from the fact that the cases involve the same parties and the same counsel. You and the other judge could consider together the advisability of asking the Chief Administrative Justice to effect a transfer under G. L. c. 211B, § 9 (see Konstanopoulos v. Whately, 384 Mass. 123, 129 [1981]), to enable the consolidation of the cases for purposes of trial. Alternatively you could discuss with the other judge and with counsel the possibility of their agreeing on a lead case, the decision in which would control the other as to the common issues of fact, law, or both. Whether you will need or wish to discuss with the parties the nature of your conversations with the other judge will depend on the circumstances of the case.

In response to the first question you have asked, you should not discuss the merits of the case pending before you with the judge who is sitting in another department of the Trial Court on a case involving the same parties, the same counsel, and related issues of law and fact. In response to the second question, you may discuss with the other judge matters relating to the two cases that are purely administrative or procedural, not affecting the substantive rights of the parties.


1. The 1990 revision to the ABA Model Code, never adopted in Massachusetts, was designated as Canon 3(B)(6) and reads as follows:

       (6) A judge shall accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law. A judge shall neither initiate nor consider ex parte communications, nor 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 that:

(i) the judge is satisfied 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 also 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.

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

2. It goes without saying that the relatively free scope afforded disinterested discussions between a judge and his or her fellow judges, clerks, or law clerks, should not be used as a cover for improper communications by judges or any other persons who are not disinterested in the pending case, by reason of friendship or otherwise, and whose communications are designed to influence the outcome of the proceeding. See Matter of DeSaulnier (No. 4), 360 Mass. 787, 813 (1972); Matter of Markey, 427 Mass. 797, 806 (1998).