Md. R. Jud. & Judi. Appts. 18-102.9

As amended through October 15, 2024

Rule 18-102.9 - Ex Parte Communications (Aba 2.9)

(a) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge out of the presence of the parties or their attorneys, concerning a pending or impending matter, except as follows:

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

(2) When circumstances require, 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.

(3) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding if the judge (A) makes provision promptly to notify all of the parties as to the expert consulted and the substance of the advice, and (B) affords the parties a reasonable opportunity to respond.

(4) 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 does not decide a case based on adjudicative facts that are not made part of the record, and does not abrogate the responsibility personally to decide the matter.

Cross reference: See Comment [1] to Rule 18-103.9, permitting a judge to engage in prehearing and settlement conferences.

(5) With the consent of the parties, a judge may confer separately with the parties and their attorneys as part of a prehearing or settlement conference conducted pursuant to the Rules in Title 17.

(6) When serving in a problem-solving court program of a circuit court or the District Court pursuant to Rule 16-207, a judge may initiate, permit, and consider ex parte communications in conformance with the established protocols for the operation of the program if the parties have expressly consented to those protocols.

(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 adjudicative facts in a matter independently, and shall consider only the evidence in the record 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.

Md. R. Jud. & Judi. Appts. 18-102.9

This Rule is derived from former Rule 2.9 of Rule 16-813(2016).

Adopted June 6, 2016, eff. 7/1/2016. Amended June 20, 2017, eff. 8/1/2017.

HISTORICAL NOTES

2017 Orders

The June 20, 2017 order, changed a certain reference from a retired judge approved for recall to a senior judge.

COMMENT

[1] To the extent reasonably possible, all parties or their attorneys 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 attorney, or if the party is self-represented, 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 attorneys, 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 consult with other judges on pending matters, including a senior judge, 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.

[5] The prohibition against a judge investigating adjudicative facts in a matter extends to information available in all mediums, including electronic.

[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 subsection (a)(2) of this Rule.

Committee note: This Rule does not regulate judicial notice of so-called "legislative facts (facts pertaining to social policy and their ramifications) or of law.

See Rule 5-201.