Can a prosecutor contact a judge ex parte to get an emergency stay of a bail-reduction order?

Plain-English summary

After a bail-reduction hearing at which both the assistant state's attorney and defense counsel appeared, bail was substantially reduced. While the defendant was posting bail, the state's attorney learned of new information (including a prior threat to harm the victim) and contacted the judge ex parte to obtain a stay of the reduction order and an emergency hearing on a motion to reconsider. The state's attorney obtained the stay and was directed to notify defense counsel, and a later hearing with both sides present restored the original bail.

The opinion concluded that the ex parte communication violated Rule 3.5(i), which bars ex parte communications "as to the merits of the cause" with a judge before whom a proceeding is pending, except as permitted by law. It concluded that "on the merits" refers to the content of the communication rather than a particular phase of the case, citing In re Conduct of Burrows; because the state's attorney obtained the relief sought (keeping the defendant in custody), the communication went to the merits.

The opinion then concluded that the communication was authorized by law only if it complied with the bail statute (725 ILCS 5/110-6), which generally requires reasonable notice before seeking to increase bail but excuses notice on a verified application stating a violation or threatened violation of bail conditions. Because the facts did not show that any such verified application was on file before the ex parte contact, the opinion concluded the communication was not authorized by law and therefore violated Rule 3.5(i). It added that no "emergency" exception to the rules exists, citing In re Samuels ("no cut rate version of ethics"), and noted that statutory and other alternatives were available.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 3.5(b)), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Is a prosecutor's ex parte request to a judge for an emergency bail stay an ethics violation?

A: The opinion concluded it violated Rule 3.5(i) because obtaining the stay was a communication on the merits, unless it was authorized by the bail statute's verified-application exception.

Q: Does an emergency justify an otherwise-prohibited ex parte communication?

A: No. The opinion concluded that no emergency exception to the rules exists, quoting In re Samuels that there is "no cut rate version of ethics," and pointed to statutory alternatives that were available.

Q: When is such a communication "authorized by law"?

A: The opinion concluded it would be authorized only if it complied with 725 ILCS 5/110-6, which excuses prior notice on a verified application stating a violation or threatened violation of bail conditions; the facts did not show such an application preceded the contact.

Background and rules framework

The opinion interpreted Rule 3.5(i) (the Illinois prohibition on ex parte communications on the merits with a judge before whom a proceeding is pending, except as permitted by law; Model Rule 3.5). It read the "except as permitted by law" clause against the Illinois bail statute, 725 ILCS 5/110-6, and its notice-exception subsection.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.5 (impartiality of the tribunal; ex parte communication) / Illinois Rule 3.5(i)

Statutes:

• 725 ILCS 5/110-6 (proceedings to increase bail; notice and verified-application exception)

Cases:

• In re Conduct of Burrows, 629 P.2d 820 (Or. 1981), "on the merits" means content, not phase
• In re Samuels, 126 Ill. 2d 509 (1989), no "cut rate" version of ethics

See also

• ISBA Ethics Op. 94-07: Ex Parte Request From a Court to Draft an Order
• ISBA Ethics Op. 93-08: Prosecutor Leasing Office Space to Practicing Lawyers

Source

• Landing page: https://www.isba.org/ethics/opinions/9312