Md. R. Jud. & Judi. Appts. 18-202.9

As amended through November 13, 2024

Rule 18-202.9 - Ex Parte Communications

(a) A judicial appointee shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judicial appointee out of the presence of the parties or their attorneys, concerning a pending or impending matter, except as follows:

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

(2) When circumstances require, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

(A) the judicial appointee reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

(B) the judicial appointee makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

(3) A judicial appointee may obtain the advice of a disinterested expert on the law applicable to a proceeding if the judicial appointee (A) makes provision promptly to notify all of the parties as to the expert consulted and the substance of the advice, and (B) affords the parties a reasonable opportunity to respond.

(4) A judicial appointee may consult with court staff and court officials whose functions are to aid the judicial appointee in carrying out the judicial appointee's adjudicative responsibilities, or with a judge, provided the judicial appointee does not make a decision based on adjudicative facts that are not made part of the record, and does not abrogate the responsibility personally to decide the matter.

(5) With the consent of the parties, a judicial appointee may confer separately with the parties and their attorneys as part of a settlement conference conducted pursuant to the Rules in Title 17.

(6) When serving in a problem-solving court program of a circuit court or the District Court pursuant to Rule 16-207, a judicial appointee may initiate, permit, and consider ex parte communications in conformance with the established protocols for the operation of the program if the parties have expressly consented to those protocols.

Cross reference: See Rule 4-216(b) limiting ex parte communications with a District Court Commissioner. To the extent of any inconsistency between that Rule and this one, Rule 4-216(b) prevails.

(b) If a judicial appointee inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judicial appointee shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

(c) Unless expressly authorized by law, a judicial appointee shall not investigate adjudicative facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

Cross reference: See Code, Courts Article, § 2-607(c)(2) authorizing District Court Commissioners to conduct investigations and inquiries into the circumstances of matters presented to determine if probable cause exists for the issuance of a charging document, warrant, or criminal summons.

(d) A judicial appointee 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 judicial appointee's direction and control.

Md. R. Jud. & Judi. Appts. 18-202.9

This Rule is derived from former Rule 2.9 of Rule 16-814(2016).

Adopted June 6, 2016, eff. 7/1/2016. Amended June 20, 2017, eff. 8/1/2017.

HISTORICAL NOTES

2017 Orders

The June 20, 2017 order, changed a certain reference from a retired judge approved for recall to a senior judge.

COMMENT

[1] To the extent reasonably possible, all parties or their attorneys shall be included in communications with a judicial appointee.

[2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party's attorney, or if the party is self-represented, 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 attorneys, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

[4] A judicial appointee may consult with judges or other judicial appointees on pending matters, including a senior judge, but must avoid ex parte discussions of a case with judges or judicial appointees who have previously been disqualified from hearing the matter or with a judge whom the judicial appointee knows has been assigned to hear exceptions to the judicial appointee's recommendation in the matter.

[5] The prohibition against a judicial appointee investigating adjudicative facts in a matter extends to information available in all mediums, including electronic.

[6] A judicial appointee may consult ethics advisory committees, outside counsel, or legal experts concerning the judicial appointee's compliance with this Code. Such consultations are not subject to the restrictions of subsection (a)(2) of this Rule.

Committee note: This Rule does not regulate judicial notice of so-called "legislative facts (facts pertaining to social policy and their ramifications) or of law.

See Rule 5-201.