What did the West Virginia JIC say about ex parte contacts with counsel for hearing scheduling, cancellations, and mediation-status inquiries?
Apply this to your situation
This page answers the general question as of 2007. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A judge asked about three ex parte contacts by the judge or staff: setting a hearing date, notifying counsel of a cancellation or continuance, and asking whether mediation occurred and resolved the matter, each without discussing merits.
The Commission reproduced former Canon 3B(7), including its exception for scheduling and administrative contacts where no party gains a procedural or tactical advantage and other parties are promptly notified and allowed to respond. It then said the Canon’s language specifically addressed the three questions, without applying it separately to each contact.
In practice
The letter supplies the former Canon’s conditions but does not give unconditional approval for any of the three contacts.
Common questions
Q: Did the opinion expressly approve every proposed contact?
A: No. It quoted Canon 3B(7) and said its language addressed the three issues.
Q: What conditions did the quoted scheduling exception impose?
A: The judge must reasonably believe no party gains a procedural or tactical advantage and promptly arrange notice to other parties with an opportunity to respond.
Q: Could the communication address the merits?
A: The quoted exception was for scheduling, administrative, or emergency contacts that did not address substantive matters or merits.
Background and rules framework
Former Canon 3B(7), quoted at length, generally barred ex parte communications in pending or impending proceedings. Its subsection (a) gave a conditional exception for nonsubstantive scheduling, administrative, and emergency contacts.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3; Canon 3B(7), including Canon 3B(7)(a)(i)-(ii).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2007-02, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 • FAX (304) 558-0831
February 12, 2007
Re: JIC Advisory Opinion 2007-02
Dear Judge
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion on the following issues: 1) Whether it is a violation of the Judicial Canons of Ethics for a judge or a member of the judge’s staff to speak with an attorney in a case ex parte in order to provide the attorney with a date for a hearing (without discussing any merits of the motion other than how long the party will need for the hearing and type of hearing); 2) whether it is a violation of the Code of Judicial Canons of Ethics for a judge or the judge’s staff to contact an attorney or the attorney’s staff member ex parte to advise them that a hearing has been canceled or continued (without discussing the merits of the case); 3) whether it is a violation of the Judicial Canons of Ethics for a judge or a member of the judge’s staff to make an ex parte inquiry with an attorney to a case as to whether mediation took place and whether the matter was resolved or not resolved (without discussing what took place at the ordered mediation or discussing the merits of the case).
To address the questions which you have raised the Commission has reviewed Canon 3 of the Code of Judicial Conduct which states in relevant part:
Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
February 12, 2007
Page Two
B. Adjudicative responsibilities.
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. 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 concerning a pending or impending proceeding except that:
(a) Where circumstances require, ex parte
communications for scheduling, administrative
purposes, or emergencies that do not deal with
substantive matters or issues on the merits are
authorized: provided:
(i) the judge reasonably believes that no
party will gain a procedural or tactical
advantage as a result of the ex parte
communication, and
(ii) the judge makes provision promptly to
notify all other parties of the substance
of the ex parte communication and
allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested
expert on the law applicable to a proceeding
before the judge if the judge gives notice to the
parties of the person consulted and the substance
of the advice, and affords the parties reasonable
opportunity to respond.
(c) A judge may consult with court personnel whose
functions include aiding the judge in carrying out
the judge’s adjudicative responsibilities or with
other judges.
(d) A judge may, with the consent of the parties,
confer separately with the parties and their
lawyers in an effort to mediate or settle matters
pending before the judge.
(e) A judge may initiate or consider any ex parte
communications when authorized by law.
February 12, 2007
Page Three
After reviewing Canon 3B(7) it is the opinion of the Commission that the language contained in the Canon is specific in addressing the three issues which you have raised. If you have any further question regarding this matter, do not hesitate to contact the Commission.
Very truly yours,
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
FLF,II:nb
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