Mass. Code Jud. Conduct R. 2.9

Rule 2.9

(A)

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 or their lawyers, concerning a pending or impending matterDefinitionA matter that is imminent or expected to occur in the near future. A matter is impending if it seems probable that a case will be filed, if charges are being investigated, or if someone has been arrested although not yet charged. See Rules 2.9, 2.10, 3.2, and 3.13. , except as follows:

(1)

When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

(2)

A judge may engage in ex parte communications in specialty courtsDefinitionA specifically designated court session that focuses on individuals with underlying medical, mental health, substance abuse, or other issues that contribute to the reasons such individuals are before the courts. Specialty court sessions integrate treatment and services with judicial case oversight and intensive court supervision. Examples include drug courts, mental health courts, veterans' courts, and tenancy preservation programs. See Rule 2.9., as authorized by lawDefinitionIncludes court rules and standing orders issued by the Supreme Judicial Court, the Appeals Court, the Chief Justice of the Trial Court, or a Chief Justice of a Trial Court Department, as well as statutes, constitutional provisions, and decisional law. Chapter 268A §§ 3 and 23(b)(2) provide that conduct explicitly recognized by another statute or regulation may supersede certain provisions of Chapter 268A. The Rules of the Supreme Judicial Court are considered regulations for this purpose. In several instances, provisions of this Code supersede provisions of Chapter 268A. See Rule 1.1..

(3)

A judge may consult with court personnelDefinitionCourt employees subject to the judge's direction and control. See Rules 2.3, 2.5, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, and 3.5. whose function is to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, subject to the following:

(a) a judge shall take all reasonable steps to avoid receiving from court personnel or other judges factual information concerning a case that is not part of the case record. If court personnel or another judge nevertheless brings information about a matter that is outside of the record to the judge's attention, the judge may not base a decision on it without giving the parties notice of that information and an opportunity to respond. Consultation is permitted between a judge, clerk-magistrate, or other appropriate court personnel and a judge taking over the same case or session in which the case is pending with regard to information learned from prior proceedings in the case that may assist in maintaining continuity in handling the case;

(b) when a judge consults with a probation officer, housing specialist, or comparable court employee about a pending or impending matter, the consultation shall take place in the presence of the parties who have availed themselves of the opportunity to appear and respond, except as provided in Rule 2.9(A)(2);

(c) a judge shall not consult with an appellate judge, or a judge in a different Trial Court Department, about a matter that the judge being consulted might review on appeal; and

(d) no judge shall consult with another judge about a pending matterDefinitionA matter that has commenced. A matter continues to be pending through any appellate process until final disposition. See Rules 2.9, 2.10, 3.2, and 3.13. before one of them when the judge initiating the consultation knowsDefinitionActual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. See Rules 1.3, 2.5, 2.9, 2.11, 2.15, 2.16, 3.3, 3.5, and 3.6. the other judge has a financial, personal or other interest that would preclude the other judge from hearing the case, and no judge shall engage in such a consultation when the judge knows he or she has such an interest.

(4)

A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle civil matters pending before the judge.

(5)

A judge may initiate, permit, or consider any ex parte communication when authorized by law to do so.

(B)

If a judge inadvertently receives an unauthorized ex parte communication bearing upon .the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication.

(C)

A judge shall consider only the evidence presented and any adjudicative facts that may properly be judicially noticed, and shall not undertake any independent investigation of the facts in a matter.

(D)

A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court personnel.