We all know the rule that ex parte communications between counsel and the court are generally forbidden. We also know that judges—even judges of good will—who know the rule break it all the time. This week I got a little bit of insight into how this might happen when a Harris County jurist, someone who has been a judge for longer than I’ve been a criminal-defense lawyer, told me:
“If it’s in open court, it’s not ex parte.”
I was floored. I had always thought that an ex parte communication is one in which one side participated and the other did not, regardless of where it happened—in the back hallway, in open court, or in the hot tub.
An ex parte communication is one that involves fewer than all parties who are legally entitled to be present during the discussion of any matter with the judge. Ex parte communications are prohibited because they are inconsistent with the right of every litigant to be heard and with the principle of maintaining an impartial judiciary. This proscription applies regardless of whether the communication occurs through a social media website, in the judge’s chambers, or elsewhere. ((Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.–Dallas 2013, no pet.).))
“An ex parte proceeding is a proceeding that does not afford the opposing party notice and an opportunity to be heard on the requested relief.” K.G. v. Meredith, 138 Cal. Rptr. 3d 645, 661 n.15 (App. 1 Dist. 2012).
“Ex parte communications are those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter and are prohibited in order to ensure that every person who is legally interested in a proceeding is given the full right to be heard according to law.” Harris v. United States, 738 A.2d 269, 277 (D.C. 1999).
An ex parte communication is “[a] generally prohibited communication between counsel and the court when opposing counsel is not present.” Black’s Law Dictionary 597 (7th ed. 1999).
&c &c &c.
An on-the-record proceeding is not ex parte if the missing party had notice and an opportunity to participate—if I ask the prosecutor to join me in discussing something with the judge and the prosecutor declines, my chat with the judge is not ex parte. But it’s notice that is key, and not locus.
I won’t embarrass publicly the judge who got it so wrong, but I hope that he’ll read this and be a little bit embarrassed—at least embarrassed enough to remember: Whether in court, on the golf course, or on Facebook, ex parte is ex parte.