Permissible ex parte communications are the narrow set of situations where a judge may hear from one side without the other present: routine scheduling and administrative requests, emergency applications like temporary restraining orders, proceedings the law itself authorizes to run one-sided (search warrants, grand juries, in camera review), private settlement caucuses that every party has consented to, a judge’s consultations with court staff or fellow judges, written advice from a disinterested legal expert after notice to the parties, and ordinary clerical contact with the clerk’s office. Each exception comes with conditions, and stepping outside them is what turns an allowed conversation into a sanctionable one.
Scheduling and Administrative Contact
The most common permitted exchange has nothing to do with the merits of a case. Under ABA Model Rule 2.9(A)(1), a judge may participate in an ex parte communication for scheduling, administrative, or emergency purposes so long as it does not address anything substantive.1American Bar Association. Model Code of Judicial Conduct Rule 2.9 – Ex Parte Communications Two conditions attach: the judge must reasonably believe no party gains a procedural or tactical advantage from the exchange, and the judge must promptly notify every other party of what was discussed and give them a chance to respond.
In practice, this covers confirming a hearing date, asking about courtroom availability, or coordinating logistics for a multi-day trial. A lawyer who calls chambers to reschedule a status conference is not expected to loop in opposing counsel.
Where Procedural Ends and Substantive Begins
The line between procedural and substantive is where most accidental violations happen. Federal regulations define a prohibited ex parte communication as one that concerns the merits or substantive outcome of a pending case, is made without notice to all parties, and could influence the decision-maker.2eCFR. 49 CFR 1102.2 – Procedures Governing Ex Parte Communications A request to move a hearing from Tuesday to Thursday is procedural. A request to move it because your expert witness needs more time to shore up their opinion starts shading into strategy, and an attentive judge will cut it off.
Keep any one-sided contact brief and factual. If the communication requires explaining why you need something, it probably belongs on the record with opposing counsel present.
Emergency Orders and Temporary Restraining Orders
When someone faces immediate, irreparable harm, courts can act before notifying the other side. Under Federal Rule of Civil Procedure 65(b), a judge may issue a temporary restraining order without notice to the opposing party if the applicant demonstrates through specific facts that waiting for a hearing would cause irreparable injury, loss, or damage.3Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders The applicant’s attorney must also certify in writing what efforts were made to give notice and explain why notice should not be required.
These situations typically involve threats of physical violence, likely destruction of evidence, or the risk that a defendant will flee or hide assets. Domestic violence cases are a frequent example, because alerting an abuser that a protective order is coming could escalate the danger before any protection takes effect.
Built-In Safeguards
Ex parte emergency orders carry tight limits designed to protect the absent party. A TRO expires no later than 14 days after entry unless the court extends it for good cause or the restrained party consents to a longer period.3Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders Within that window, the court must schedule a full hearing where both sides appear.
Rule 65(c) adds a financial check. The person obtaining the order must post a security bond in an amount the court considers appropriate to cover the costs and damages the restrained party would suffer if the order turns out to have been wrongfully granted.3Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders The federal government and its agencies are exempt from the bond requirement; everyone else has to put money up front.
Proceedings the Law Authorizes Ex Parte
Certain legal processes are designed from the start to be one-sided, and no special justification is needed because the law itself authorizes the format. ABA Model Rule 2.9(A)(5) recognizes this category broadly, permitting judges to initiate or consider ex parte communications when expressly authorized by law.1American Bar Association. Model Code of Judicial Conduct Rule 2.9 – Ex Parte Communications
Search Warrants
Under Federal Rule of Criminal Procedure 41, a law enforcement officer or government attorney presents an affidavit establishing probable cause to a magistrate judge, who may issue a warrant to search for and seize property or install a tracking device.4Legal Information Institute. Federal Rules of Criminal Procedure Rule 41 – Search and Seizure The suspect is never notified in advance; tipping off the target would defeat the purpose. Warrants can even be requested by phone or other electronic means when circumstances demand speed.
Grand Jury Proceedings
Grand juries operate under a strict secrecy rule. Federal Rule of Criminal Procedure 6(e) prohibits grand jurors, court reporters, interpreters, government attorneys, and several other participants from disclosing what happens in the proceedings.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 6 – The Grand Jury The target of the investigation typically has no idea the grand jury is meeting, let alone what evidence is being presented. Secrecy encourages candid testimony and protects people who are investigated but ultimately not indicted.
In Camera Review
Judges sometimes need to review documents privately to decide whether they must be disclosed. This is in camera review, and it happens most often when a party claims attorney-client privilege or another legal protection over certain materials. Under Federal Rule of Evidence 104, the court decides preliminary questions about whether a privilege exists and is not bound by ordinary evidence rules in doing so.6Legal Information Institute. Federal Rules of Evidence Rule 104 – Preliminary Questions The judge reviews the disputed documents alone, determines whether the privilege claim holds up, and then either orders disclosure or confirms the protection.
Settlement Conferences and Mediation Caucuses
Private meetings between a judge and individual parties are routine during settlement efforts, and the rules explicitly allow it. ABA Model Rule 2.9(A)(4) permits a judge to confer separately with the parties and their lawyers, with everyone’s consent, in an effort to settle matters pending before the judge.1American Bar Association. Model Code of Judicial Conduct Rule 2.9 – Ex Parte Communications In mediation, these private sessions are called caucuses, and they are often where real progress happens. A party can share its true bottom line or explain financial constraints without tipping off the other side.
Consent is the gatekeeper. Every party must voluntarily agree to the caucus format, and anyone who feels pressured can withdraw that agreement. Information shared during a private caucus is generally treated as confidential, and the neutral cannot pass it along without permission.
Judges Consulting Staff, Colleagues, and Experts
Judges do not decide in a vacuum. ABA Model Rule 2.9(A)(3) permits a judge to consult privately with court staff, court officials whose job is to assist with judicial duties, and other judges.1American Bar Association. Model Code of Judicial Conduct Rule 2.9 – Ex Parte Communications A judge discussing a complex legal question with a law clerk or bouncing an issue off a colleague down the hall is not engaging in prohibited contact.
Two limits apply. The judge must make reasonable efforts to avoid receiving factual information that is not part of the case record, and the judge cannot delegate the actual decision. A law clerk can research and draft a memorandum, but the judge must personally decide the matter. The federal Code of Conduct for United States Judges mirrors this, requiring judges to ensure their law clerks and court personnel comply with the ex parte restrictions that bind the judge.7United States Courts. Code of Conduct for United States Judges
Reaching outside the courthouse carries more friction. Under ABA Model Rule 2.9(A)(2), a judge may obtain the written advice of a disinterested expert on the applicable law, provided the judge gives advance notice to the parties identifying who will be consulted and on what subject, and gives them a reasonable opportunity to object and to respond to whatever advice the expert provides.1American Bar Association. Model Code of Judicial Conduct Rule 2.9 – Ex Parte Communications The advice must be written, the expert must be disinterested, and the parties get a full chance to push back. A judge who quietly calls a law professor and never tells the parties has violated the rule even if the advice was perfectly sound.
Contacting the Clerk’s Office
Calling the clerk’s office to ask about a filing deadline, check a case status, or confirm which courtroom to appear in is not an ex parte communication in any meaningful sense. These are ministerial interactions about clerical matters that have no bearing on the judge’s decision. You can ask when your hearing is scheduled, how to file a motion, or what the filing fee costs without copying the other side.
The boundary matters for self-represented litigants who sometimes try to get legal guidance from court staff. Federal law prohibits clerks, their deputies, and assistants from practicing law in any U.S. court.8Office of the Law Revision Counsel. 28 USC 955 – Practice of Law Restricted A clerk can tell you what forms you need and where to file them but cannot advise you on what to put in them or whether you have a good case.
When a Judge Receives an Unauthorized Communication
Even with the best intentions, judges sometimes receive ex parte communications they did not invite. A party sends a letter directly to chambers, or a voicemail mixes substantive argument into a scheduling request. ABA Model Rule 2.9(B) addresses this directly: if a judge inadvertently receives an unauthorized communication bearing on the substance of a case, the judge must promptly notify all parties of what was communicated and give them a chance to respond.1American Bar Association. Model Code of Judicial Conduct Rule 2.9 – Ex Parte Communications The rule puts the burden on the judge to fix the problem regardless of who caused it. Judges who disclose immediately and offer a chance to respond usually avoid any taint to the proceeding.
What Happens When the Line Is Crossed
Improper ex parte contact can unravel proceedings and end careers, which is why courts treat violations seriously even when the content seems trivial. Federal regulations authorize sanctions against any party or attorney who makes, encourages, or solicits a prohibited ex parte communication. Under 28 CFR § 76.15, those sanctions can include exclusion from the proceedings entirely.9eCFR. 28 CFR 76.15 – Ex Parte Communications Courts can also strike tainted filings, impose monetary penalties, or refer attorneys to state bar disciplinary authorities.
The judge can be swept in as well. Under 28 U.S.C. § 455, a federal judge must disqualify themselves from any proceeding in which their impartiality might reasonably be questioned, and disqualification is also required where the judge has personal knowledge of disputed facts or personal bias concerning a party.10Office of the Law Revision Counsel. 28 USC 455 – Disqualification of Justice, Judge, or Magistrate Judge An improper ex parte communication that gives a judge information outside the record can trigger either ground.
An order issued after improper contact is vulnerable to being thrown out. The affected party can move to vacate, arguing that the order was obtained through a fundamentally unfair process. Courts weigh whether the communication actually influenced the outcome and whether the other side was prejudiced. Even when the substance seems harmless, the appearance of impropriety alone can justify vacating the order and starting over.