"Ex parte communications are prohibited generally because they undermine the adversary system, threaten the fairness of a proceeding, and create an appearance of bias and impartiality." Garwin et al., supra, at 176 (citing In re Marek, 609 N.E.2d 419, 420 (Ind. 1993)); see also Rule 21-206 committee commentary ¶ 1 ("The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.").

{15} Even though the provisions of Rules 21–209(A) and 21–206(A) technically apply directly to the assigned judge, they are important in understanding why Respondent's call to Judge Reynolds constituted willful misconduct in office. “Ex parte communications are prohibited generally because they undermine the adversary system, threaten the fairness of a proceeding, and create an appearance of bias and impartiality.” Garwin et al., supra, at 176 (citing In re Marek, 609 N.E.2d 419, 420 (Ind.1993)); see alsoRule 21–206 committee commentary ¶ 1 (“The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.”).

[Such conduct threatens] not only the fairness of the resolution at hand, but the reputation of the judiciary and the bar, and the integrity of our system of justice." Matter of Marek, 609 N.E.2d 419, 420 (Ind. 1993). Even in a proper ex parte proceeding, a lawyer has the duty "to inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse."

We conclude that these facts establish a prohibited ex parte communication with a judge in violation of Professional Conduct Rule 3.5(b). The presumption in every adversarial proceeding is that there is no ex parte communication with the judge, and that notice of any communication with the court will be given to all parties. As we recently explained in In re Anonymous, 729 N.E.2d 566, 569 (Ind. 2000) (quoting In re Marek, 609 N.E.2d 419, 420 (Ind. 1993)): At the heart of our adversarial system of justice is the opportunity for both sides of a controversy to be fairly heard.

[Such communications] threaten not only the fairness of the resolution at hand, but the reputation of the judiciary and the bar, and the integrity of our system of justice. In re Anonymous, 729 N.E.2d 566, 569 (Ind. 2000) (quoting Matter of Marek, 609 N.E.2d 419, 420 (Ind. 1993)). It is imperative that we avoid even the appearance of granting one party a procedural or tactical advantage over the other as a result of an ex parte contact.

[Such communications] threaten not only the fairness of the resolution at hand, but the reputation of the judiciary and the bar, and the integrity of our system of justice." Matter of Marek, 609 N.E.2d 419 (Ind. 1993). The facts of this case exhibit conduct that the prohibition against ex parte communication is intended to proscribe.

Other jurisdictions have ruled that the sending of the e-mail to the court constituted an ex parte communication because counsel failed to send a copy to opposing counsel. In re Frelix, 134 A.D.3d 58, 17 N.Y.S.3d 716 (2015); In re Williams, 276 B.R. 899 (C.D. Ill. 1999); Purifoy v. Mafa, 556 S.W.3d 170 (Tenn. Ct. App. 2017); In re Disciplinary Proceedings Against Hudec, 2014 WI 46, 354 Wis.2d 728, 848 N.W.2d 287; Magnan v. Holen, 11 Am. Tribal L. Rptr. 256, (Fort Peck Ct of App. 2010); In re Marek, 609 N.E.2d 419 (Ind. 1993). We note that the Washington Supreme Court, in State v. Bourgeois, 133 Wn.2d 389 (1997), recognized that an ex parte communication occurs when notice is not given to all parties.

They can extraneously influence decisions by introducing information outside the court record, and can do so unfairly because the communications are not shared with all participants. See, e.g. , Rho–Sigma, Inc. v. Int'l Control & Measurements, Corp. , 691 So.2d 16, 17 (Fla. Dist. Ct. App. 1997) (per curiam); Matter of Marek , 609 N.E.2d 419, 420 (Ind. 1993) (per curiam); In re Conduct of Burrows , 291 Or. 135, 629 P.2d 820, 826 (1981) (en banc ). Ex parte communications thus are widely forbidden as a matter of procedure, due process, and ethics, as they deprive a litigant of the right to a fair trial before an impartial tribunal.

They can extraneously influence decisions by introducing information outside the court record, and can do so unfairly because the communications are not shared with all participants. See, e.g., Rho-Sigma, Inc. v. Int'l Control & Measurements, Corp., 691 So. 2d 16, 17 (Fla. Dist. Ct. App. 1997) (per curiam); Matter of Marek, 609 N.E.2d 419, 420 (Ind. 1993) (per curiam); In re Conduct of Burrows, 629 P.2d 820, 826 (Or. 1981) (en banc). Ex parte communications thus are widely forbidden as a matter of procedure, due process, and ethics, as they deprive a litigant of the right to a fair trial before an impartial tribunal.