Haw. Code. Jud. Cond. 2.9

As amended through September 30, 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, an ex parte communication for scheduling, administrative, or emergency purposes that 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 provisions 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, provided that any factual information received by the judge that is not part of the record is timely disclosed to the parties. A judge may also consult with other judges, except that the judge shall not have an ex parte discussion of a case with a judge who has either previously been disqualified from or has appellate jurisdiction over the matter. A consultation under this Rule does not abrogate the judge's responsibility personally to decide the matter.

Code Comparison

The Hawai'i Revised Code of Judicial Conduct modifies ABA Model Code Rule 2.9(A)(3) by (1) permitting, rather than prohibiting, a judge from receiving factual information that is not part of the record, so long as the judge timely discloses such information to the parties and (2) prohibiting consultation with other judges in certain circumstances.

(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, except in criminal matters and juvenile matters involving law violations or status offenses.

Code Comparison

The Hawai'i Revised Code of Judicial Conduct modifies ABA Model Code Rule 2.9(A)(4) by limiting the Rule to matters other than criminal and juvenile matters.

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

(6) A judge may initiate, permit, or consider an ex parte communication when serving on a therapeutic or specialty court, such as a mental health court or drug court, provided that the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication and any factual information received that is not part of the record is timely disclosed to the parties.

Code Comparison

The Hawai'i Revised Code of Judicial Conduct modifies ABA Model Code Rule 2.9(A) by incorporating Comment [4] into the Rule as Rule 2.9(a)(6).

(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) Subject to Rule 2.9(a)(3) and Rule 2.9(a)(6), a judge shall not investigate facts in a matter independently, but 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.

Haw. 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 when serving on therapeutic or problem-solving courts, such as mental health courts or drug courts. In this capacity, judges may assume a more interactive role with 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] The prohibition against a judge investigating the facts in a matter extends to information available in all media, including electronic.

[7] 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 Rule 2.9(a)(2).