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Watching some legal movies it struck me as odd where judges are portrayed talking to one of the parties in the absence of the other (ex-parte communication). Say in New Zealand, this amounts to judicial misconduct (Guidelines for Judicial Conduct at [30]):

Communication between the judge and any party in the absence of the other party to the case is not permissible, except in proceedings properly heard ex parte.

Some examples:

  • In A Time to Kill, the judge is once shown walking down the street friendly talking to the state attorney/prosecutor (Jake and Oliver see them while sitting in a cafe just before Ellen Roark arrives). In another scene, the judge invites Jake to his house to tell him that his application for change of venue is denied.

  • In The Untouchables, Ness talks to the judge in his chambers, shows him a piece of paper where the jurors (as well as the judge himself) are listed to be on Capone's payroll, and persuades him to switch the jury.

Was/is it permissible for judges in the US to talk ex-parte like that? If yes, how come? If no, do the above scenes in the movies essentially portray judicial misconduct?

Related: Ex-parte communication between a Judge and Prosecutor - ethical breach or canon violation?

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    It should be noted that U.S. Legal Dramas, like almost any U.S. film, will not 100% give accurate portrayals of their subject matter and may fudge some of the things the general public need not be aware of in order to get the point across. – hszmv Feb 9 at 14:25
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    In the novel Sycamore Row, the direct sequel to, A Time to Kill, there are several scenes where Jake has ex-parte discussions with the Judge. He thinks that these are technical violations of the rules, but are common practice as long as they do not go "too far". I do not know if such was in fact common practice, bu author Grisham was a practicing lawyer in similar circumstances before he became a successful novelist, so perhaps such violations were then common. – David Siegel Feb 9 at 16:22
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Was/is it permissible for judges in the US to talk ex-parte like that?

No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020).

For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended.

do the above scenes in the movies essentially portray judicial misconduct?

Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' & judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter.

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  • Could you at least put a little informative text over those links instead of "here" and "here"? The names of the cases would be best. When those links stop working it will be difficult to know what you're referring to. – phoog Feb 9 at 13:35
  • @phoog Good point. Thanks. I hadn't noticed but the cases are so recent that they do not even have a reporter citation yet. Hence I added the Bozeman decision. – Iñaki Viggers Feb 9 at 13:50
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The prohibition is primarily on the parties communicating ex parte with the judge. The point is to ban communications that one party may use to gain advantage in a case that the other party does not have access to.

The judge communicating to a party ex parte is not necessarily unethical, particularly if the information is available to the other party whether the other party was there or not. And strictly simultaneous communication with both parties (e.g. telling one party by phone that a court date has been set for a certain time and place and then immediately after calling another party by phone the same thing, because the judge doesn't have conference call technology) isn't required in communications from a judge to the parties.

There are also some trivial matters (e.g. communications re scheduling) that are exceptions to the general rule.

Also, there are exceptions to the rules against ex parte communication that sometimes allow a judge to make in camera (i.e. in the judge's chambers) reviewing of information from one side without sharing it with the other side.

For example, this is often done when there is a dispute over whether evidence in a jury proceeding is a privileged communication.

Also, the prohibition on ex parte communications is a prohibition on communications about a judge's official duties in a particular case. An ex parte communication with a judge about the weather or the Super Bowl or what hours the court is open, or what courtroom the judge works out of, is just fine, even though the rule may be stated in black and white terms that don't obviously recognize such a limitation.

I don't know either fictional work well enough to know if those are prohibited, but there are enough exceptions to the general rule that it isn't obviously true.

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  • "telling one party by phone that a court date has been set for a certain time" — this is what court clerks are for. Are you saying judges themselves ever communicate that sort of thing outside of courtroom? – Greendrake Feb 9 at 22:04
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    @Greendrake In rural America, all the time. – ohwilleke Feb 9 at 22:30
  • Wow. That explains a lot. (Never supposed to happen in New Zealand). Cheers. – Greendrake Feb 9 at 23:32

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