When may an Indiana lawyer communicate with a judge or seek emergency relief without notice to other parties?

Plain-English summary

Opinion 2-24 applies Professional Conduct Rule 3.5(b), Trial Rules 5 and 65(B), and Judicial Conduct Rule 2.9. Pleadings and proposed orders are served on opposing parties unless an authorized exception applies. A substantive communication with a judicial officer outside the presence of or without notice to the other side is improper unless law or a court order permits it.

The scheduling, administrative, and emergency exception is narrow. The communication cannot address substantive matters or create a procedural, substantive, or tactical advantage. The judicial officer promptly notifies all other parties and gives them an opportunity to respond.

Trial Rule 65(B) permits emergency relief without advance notice only when an affidavit or verified complaint states specific facts showing immediate and irreparable injury before the other side can be heard, and the lawyer certifies notice efforts or specific reasons notice should not be required. Missed activities, vacation costs, dislike of a parent's new partner, or a desire to travel do not supply the required emergency in the opinion's family-law hypotheticals.

Off-the-record substantive discussion with the judge can also violate Rule 3.5(a) and become conduct prejudicial to the administration of justice under Rule 8.4(d). Even a non-substantive chambers meeting immediately before a hearing can create an appearance of special influence, although the opinion concludes that the specific social interaction it describes was not itself an improper ex parte communication.

In practice

Under this opinion, notice is the general rule. The exception depends on actual legal authorization, immediate and irreparable harm, the required written certification, and preservation of every party's opportunity to be heard.

Common questions

Q: Can a lawyer contact a judge privately about scheduling?

A: The limited administrative exception can apply when no substantive issue is discussed and no party gains an advantage, but the judge still notifies the other parties and permits a response.

Q: What must an emergency petition under Trial Rule 65(B) contain?

A: Specific sworn facts showing immediate and irreparable harm before the adverse party can be heard, plus written certification of notice efforts or reasons notice should not be required.

Q: Does a last-minute vacation conflict justify an ex parte custody change?

A: No. The opinion treats nonrefundable expenses and poor planning as insufficient to establish irreparable harm.

Q: Can a lawyer discuss a pending substantive issue with the judge at a community event?

A: No. The opinion treats the private off-the-record discussion in its hypothetical as improper ex parte contact and an attempt to influence the judge.

Q: Does an emergency label by itself justify action without notice?

A: No. The opinion requires compliance with Trial Rule 65(B) and scrutinizes whether the facts establish a true emergency.

Background and rules framework

The opinion applies Indiana Professional Conduct Rules 3.5(a), 3.5(b), 8.4(d), and 8.4(f); Trial Rules 5 and 65(B); and Judicial Conduct Rules 1.2, 2.2, 2.6, and 2.9. Its hypotheticals focus on custody, visitation, protection orders, guardianship, and informal judicial contact.

Citations and references

Indiana Rules of Professional Conduct:

• Rules 3.5(a), 3.5(b), 8.4(d), and 8.4(f)

Other authorities:

• Indiana Trial Rules 5 and 65(B)
• Indiana Code of Judicial Conduct Rules 1.2, 2.2, 2.6, and 2.9

Cases:

• Matter of Jacobi, 715 N.E.2d 873 (Ind. 1999), temporary restraining orders and ex parte procedure

See also

• Ohio Opinion 1988-033: Motions and Candor to the Tribunal
• DC Bar Ethics Op. 263: Represented Persons and Criminal Contempt
• Colorado Ethics Op. 70: Post-Verdict Juror Communications

Source

• Landing page: Indiana attorney advisory opinions
• Original PDF: Opinion 2-24