Vt. Admin. Ord. Of. Sup. Ct. 2.9

As amended through August 12, 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, 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.

(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, 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 and their lawyers in an effort to settle matters pending before the judge.

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

(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 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.

Vt. Admin. Ord. Of. Sup. Ct. 2.9

Amended August 6, 2019, eff. 10/7/2019.

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 expressly authorized by law, such as when serving on therapeutic or problem-solving courts, 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 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 paragraph (A)(2).

Reporter's Notes

Rule 2.9 carries forward Vermont Code 1994, Canon 3B(7), with changes noted below.

Rule 2.9(A) is the second sentence of former Canon 3(B)(7) with the addition of "or their lawyers" in view of the fact that similar language appeared in the first sentence of the former Canon, which is now Rule 2.6(A), and with the substitution of "matter" for "proceeding" because "pending" and "impending" matters are now defined in the Terminology Section "to set temporal limits on" those phrases and, for pending matters, to "create greater certainty in the application of the Code's restrictions on judicial speech." ABA Reporter's Explanation 77-78.

In Rule 2.9(A)(1), "issues on the merits" in former Canon 3(B)(7)(a) is deleted as duplicative because it is subsumed in "substantive matters," and "permitted" is substituted for "authorized" as a matter of style. In Rule 2.9(A)(1)(a), "substantive" is added to account for the possibility that a nonsubstantive communication could indirectly confer a substantive advantage. Rule 2.9(A)(1)(b) is revised to make clear that a judge may delegate the obligation to notify. ABA Reporter's Explanation 99.

Rule 2.9(A)(2) modifies former Canon 3(B)(7)(b).