(A) A judge shall not initiate, receive, permit, or consider ex parte communications, except as follows: (1) When circumstances require it, an ex parte communication for scheduling, administrative, or emergency purposes, that does not address substantive matters or issues on the merits, is permitted, provided the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; (2) A judge 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 subject-matter of the advice solicited, and affords the parties a reasonable opportunity to object or respond 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, with the consent of the parties, may confer separately with the parties and their lawyers in an effort to settle matters pending before the judge; (5) A judge may initiate, receive, permit, or consider an ex parte communication when expressly authorized by law to do so; (6) A judge may initiate, receive, permit, or consider an ex parte communication when administering a specialized docket, provided the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage while in the specialized docket program as a result of the ex parte communication. (B) If a judge 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. 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, receive, permit, or consider ex parte communications expressly authorized by law, such as when: (1) an indigent defendant demonstrates a particularized need to retain an expert witness and has not determined whether the expert will testify at trial; (2) the judge obtains information that may result in a confidential referral of counsel to a lawyers assistance program [see Rule 2.14 ]; or (3) in order to comply with Crim. R. 46(C) provided the prosecutor and accused, or accused's attorney, are apprised of the information prior to any decision that is made as a result of the information gathered by the judge or member of the judge's staff. [4A] A judge may initiate, receive, permit, or consider ex parte communications when administering a specialized docket established under the authority of the Rules of Superintendence or other law. 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 mediums, 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 division (A)(2). Comparison to Ohio Code of Judicial Conduct
Rule 2.9(A) is substantially comparable to Ohio Canon 3(B)(7).
Rule 2.9(A)(1) is substantially the same as Ohio Canon 3(B)(7)(a).
Rule 2.9(A)(2) is comparable to Ohio Canon 3(B)(7)(b).
Rule 2.9(A)(3) expands upon Ohio Canon 3(B)(7)(c) by describing conduct a judge should attempt to avoid when consulting with court staff and officials and other judges.
Rule 2.9(A)(4), dealing with the judge's settlement authority, has no comparable provision in the Ohio Code.
Rule 2.9(A)(5) is comparable to Ohio Canon 3(B)(7)(d).
Rule 2.9(A)(6), addressing the conduct of a judge who presides over a specialized docket, has no comparable provision in the Ohio Code.
Rules 2.9(B), (C), and (D) have no comparable provisions in the Ohio Code.
Comparison to ABA Model Code of Judicial Conduct
The title to Rule 2.9 is modified to reflect more accurately the content of the rule.
Rule 2.9(A) is modified to add a prohibition against the receipt of an ex parte communication, a concept contained in Ohio Canon 3(B)(7). Deleted from division (A) is a reference to a judge's consideration of other communications outside the presence of the parties or their lawyers concerning a pending or impending matter. This phrase is incorporated in the definition of "ex parte communication" found in the Terminology section of the Code.
Rule 2.9(A)(1) is modified to retain the provisions of Ohio Canon 3(B)(7)(a). Further, Model Rule 2.9(A)(1)(b) is deleted because if a judge complies with provisions of the modified rule, notice to the other parties is unnecessary.
Rule 2.9(A)(2) retains the concept of after-the-fact notification to the parties when the judge obtains advice from a legal expert, as compared to the before-the-fact notice requirements contained in Model Rule 2.9(A)(2). The advance notice requirements contained in the Model Rules would be unworkable in many situations.
Rule 2.9(A)(6) is added due the increasing prevalence of specialized dockets in Ohio and the necessity to make provision for the manner in which communications with parties and others must occur to facilitate the proper administration of a specialized docket.
Comment [4] is divided into [4] and [4A] to treat two separate and distinct matters. Comment [4] deals with ex parte communications authorized by law and addresses the requirements in State v. Mason (1998), 82 Ohio St.3d 144 and State v. Smith (1991), 61 Ohio St.3d 284, as well as the well-recognized confidentiality in Ohio for referrals to a lawyer assistance program. Comment [4A] deals with ex parte communications that are necessary for proper administration of a specialized docket.