Supreme Judicial Court Rules  Rule 2.9 Ex parte communications

(A)

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 or their lawyers, concerning a pending or impending matter, except as follows:

(1)

When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

• (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and
• (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

(2)

A judge may engage in ex parte communications in specialty courts, as authorized by law.

(3)

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, subject to the following:

• (a) a judge shall take all reasonable steps to avoid receiving from court personnel or other judges factual information concerning a case that is not part of the case record. If court personnel or another judge nevertheless brings information about a matter that is outside of the record to the judge's attention, the judge may not base a decision on it without giving the parties notice of that information and an opportunity to respond. Consultation is permitted between a judge, clerk-magistrate, or other appropriate court personnel and a judge taking over the same case or session in which the case is pending with regard to information learned from prior proceedings in the case that may assist in maintaining continuity in handling the case;
• (b) when a judge consults with a probation officer, housing specialist, or comparable court employee about a pending or impending matter, the consultation shall take place in the presence of the parties who have availed themselves of the opportunity to appear and respond, except as provided in Rule 2.9(A)(2);
• (c) a judge shall not consult with an appellate judge, or a judge in a different Trial Court Department, about a matter that the judge being consulted might review on appeal; and
• (d) no judge shall consult with another judge about a pending matter before one of them when the judge initiating the consultation knows the other judge has a financial, personal or other interest that would preclude the other judge from hearing the case, and no judge shall engage in such a consultation when the judge knows he or she has such an interest.

(4)

A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle civil matters pending before the judge.

(5)

A judge may initiate, permit, or consider any ex parte communication when authorized by law to do so.

(B)

If a judge inadvertently receives an unauthorized ex parte communication bearing upon .the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication.

(C)

A judge shall consider only the evidence presented and any adjudicative facts that may properly be judicially noticed, and shall not undertake any independent investigation of the facts in a matter.

(D)

A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court personnel.

[1]

To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

[1A]

"Ex parte communication" means a communication pertaining to a proceeding that occurs without notice to or participation by all other parties or their representatives between a judge (or court personnel acting on behalf of a judge) and (i) a party or a party's lawyer, or (ii) another person who is not a participant in the proceeding

[2]

Whenever the presence of a party or notice to a party is required by this Rule, it is the party's lawyer, or if the party is self-represented, the party, who is to be present or to whom notice is to be given, unless otherwise required by law. For example, court rules with respect to Limited Assistance Representation may require that notice be given to both the party and the party's limited assistance attorney.

[3]

The proscription against ex parte communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

[4]

Paragraph (A)(2) permits a judge to engage in ex parte communications in conformance with law, including court rules and standing orders, governing operation of specialty courts.

[4A]

Ex parte communications with probation officers, housing specialists, or other comparable court employees are permitted in specialty courts where authorized by law. See Paragraph (A)(2) and Comment [4]. Where ex parte communications are not permitted, a judge may consult with these employees ex parte about the specifics of various available programs so long as there is no discussion about the suitability of the program for a particular party.

[5]

A judge may consult with other judges, subject to the limitations set forth by this Rule. This is so whether or not the judges serve on the same court. A judge must avoid ex parte communications about a matter with a judge who has previously been disqualified from hearing the matter or with an appellate judge who might be called upon to review that matter on appeal. The same holds true with respect to those instances in which a judge in one department of the trial court may be called upon to review a case decided by a judge in a different department; for example, a judge in the Superior Court may be required to review a bail determination made by a judge in the District Court. The appellate divisions of the Boston Municipal Court and of the District Court present a special situation. The judges who sit as members of these appellate divisions review on appeal cases decided by judges who serve in the same court department. However, the designation of judges to sit on the appellate divisions changes quite frequently; every judge on the Boston Municipal Court will, and every judge on the District Court may, serve for some time as a member of that court's appellate division. Judges in the same court department are not barred from consulting with each other about a case, despite the possibility that one of the judges may later review the case on appeal. However, when a judge is serving on an appellate division, the judge must not review any case that the judge has previously discussed with the judge who decided it; disqualification is required. Consultation between or among judges, if otherwise permitted, is appropriate only if the judge before whom the matter is pending does not abrogate the responsibility personally to decide it.

[6]

The prohibition in Paragraph (C) against a judge independently investigating adjudicative facts applies equally to information available in all media, including electronic media.

[7]

A judge may consult the Committee on Judicial Ethics, the State Ethics Commission, outside counsel, or legal experts concerning the judge's compliance with this Code.