Me. Code. Jud. Cond. 2.9

As amended through August 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) Where circumstances require it, 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 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 specific proceeding before the judge if the judge

(a) gives notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and

(b) affords the parties a reasonable opportunity to object and respond to the notice and the advice requested.

(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 with or without their lawyers present, or separately with their lawyers alone.

(5) A judge may initiate or consider any ex parte communications when expressly authorized by law, court rule, or administrative order to do so, such as when serving in judicially assisted settlement conferences or on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, counsel, treatment providers, probation officers, social workers, and others.

(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) Except when receiving case-related information about events in or around the courthouse that is relevant to assuring a fair trial and protecting the integrity of the judicial process, 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 by 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.

Me. Code. Jud. Cond. 2.9

Adopted July 1, 2015, effective 9/1/2015.

Advisory Notes - 2015

Rule 2.9 is developed from 1993 Canon 3(B)(7), but with significant changes, reflecting, among other things, the differences inherent in today's digital information age and the greater role judges are encouraged to play in discussions or negotiations promoting resolution of cases.

Addressing the proposed changes in Canon 3(B)(7) (Rule 2.9 in this revision), the 2010 Report from the Committee on Judicial Responsibility and Disability noted:

[T]he Maine Code exempts from the prohibition on ex parte communications those communications that are expressly authorized by law. The Model Code retains this exemption in Rule 2.9(A)(5), but adds, in comment [4], that the exemption includes service on various problem-solving courts. Because of the increasing prevalence of such courts in Maine, the Committee recommends including the language in the ABA's comment relating to them in the Maine Canon itself, and adding a provision that the permitted ex parte communications may be authorized by court rule or administrative orders, a provision that the exemption also applies to judicially assisted settlement conferences, and a provision adding counsel to the list of persons with whom the permitted ex parte communications may occur.

The Model Code adds new Canons 3(B)(7)(f), (g), and (h) [Rule 2.9(B), (C), and (D) ], concerning a judge's receipt of an inadvertent ex parte communication, a judge's ability to investigate relevant facts independently and a judge's responsibility to insure that the rules concerning ex parte communications are not violated by court staff or officials.

Rule 2.9(A)(2) does not in any way limit the long accepted judicial practice of referencing legal treatises, practice books, law review articles, and other legal writings in researching and preparing judicial decisions. Because parties should reasonably anticipate that judges may conduct such research in the course of their judicial duties, no advance notice of such research activities is required. The Rule likewise does not limit or require disclosure of a judge's communications with law clerks or other court employees.

Rule 2.9(C) is amended from the Model Code version to clarify that a judge may seek and receive information of events in or around the courthouse that relate to assuring a fair trial and protecting the integrity of the judicial process. Examples of such information include reports of a witnesses being intimidated, or of a juror improperly speaking or communicating about the case, or of a defendant in shackles potentially being seen by jurors. Receipt of such information is proper.

Comment [6] to Rule 2.9 in the 2011 ABA Model Code notes: "The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic." A judge's independent investigation of the facts, in violation of Rule 2.9(C), can be a basis for ethics complaints and disqualification. See In re United States, 441 F.3d 44, 66-68 (1st Cir. 2006) (ordering recusal, pursuant to federal recusal statute, 28 U.S.C. § 455(a), of judge who had initiated and maintained investigation of grand jury process and information from grand jury). In its opinion, the First Circuit noted the heavily fact specific nature of each recusal review and ordered recusal after determining that the record did "establish a reasonable basis for questioning the impartiality of the district court judge." Id. at 68. The court then noted, "We do so with no criticism of the judge, who was faced with a series of difficult issues." Id.