Colo. Code. Jud. Cond. 2.9

As amended through Rule Change 2024(18), effective October 2, 2024

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 obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received.

(3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

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

(5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* or by consent of the parties 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 and provide the parties with an opportunity to respond.

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control.

Colo. Code. Jud. Cond. 2.9

COMMENT

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

[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 unrepresented, the party, who is to be present or to whom notice is to be given.

[3] The proscription against 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] A judge may initiate, permit, or consider ex parte communications expressly authorized by law or by consent of the parties, including when serving on therapeutic or problem-solving courts such as many mental health courts, drug courts, and truancy courts. In this capacity, judges may assume a more interactive role with the parties, treatment providers, probation officers, social workers, and others.

[5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter.

[6] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge's compliance with this Code. Such consultations are not subject to the restrictions of paragraph (A)(2).

[7] As it applies to paragraph 5(C), the definition of judicially noticed facts is set forth in Rule 201 of the Colorado Rules of Evidence.

ANNOTATION Law reviews. For article, "Ex Parte Communications with a Tribunal: From Both Sides", see 29 Colo. Law. 55 (April 2000). The initiation of an ex parte communication by a judge with a party in a dependency hearing regarding the adequacy of her attorney's representation was improper, but judge would not be disqualified where disqualification motion and affidavits failed to allege facts from which it might be inferred that the ex parte communication demonstrated a bias against the party or her attorney. S.S. v. Wakefield, 764 P.2d 70 (Colo. 1988). Trial court's ex-parte communication with defendant's counsel directing counsel to prepare the form of order was not improper and did not require the attorney fee order to be vacated, where the communication was made after the court had reached its decision based on full briefing of the issues and a telephone hearing, where plaintiff's counsel was given an opportunity to object and did in fact object, and where there was no evidence of bias on the part of the judge or prejudice to plaintiff as a result of the court's action. Aztec Minerals Corp. v. State, 987 P.2d 895 (Colo. App. 1999). Applied in People v. Wieghard, 727 P.2d 383 (Colo. App. 1986). ETHICS OPINIONS A judge may, at her discretion, meet with a special interest group, but the judge is not required to do so. In assessing whether to grant a request for a meeting, the judge should require the special interest group to submit a written request specifying the purpose of the meeting. If the purpose is not improper and the judge wishes to grant the request, she should send a written response laying out ground rules for the meeting. At the meeting itself, the judge should ensure that the group is not given any impression that it is in a special position to influence the judge, and the judge should not engage in any ex parte communications with the group regarding any pending or impending matters. Colo. J.E.A.B. Op. 08-01. While a mentee judge may consult with his or her mentor judge or any other judge on "pending or impending matters," the extent of those consultations should be limited to aiding the mentee judge in reaching a final decision on that matter. The consultation should not in any way actually influence, or appear to influence, the decision the mentee judge is responsible for making in a pending matter. The final adjudicative responsibility for any decision resides solely with the mentee-judge. Colo. J.E.A.B. Op. 04-02.