Ohio Jud.Cond.R. 2.9

History

Comment [1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge. [2] Whenever the presence of a party or notice to a party is required by this rule, it is the party’s lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given. [3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this rule. [4] A judge may initiate, receive, permit, or consider ex parte communications expressly authorized by law, such as when: (1) an indigent defendant demonstrates a particularized need to retain an expert witness and has not determined whether the expert will testify at trial; (2) the judge obtains information that may result in a confidential referral of counsel to a lawyers assistance program [see Rule 2.14] ; or (3) in order to comply with Crim. R. 46(C) provided the prosecutor and accused, or accused’s attorney, are apprised of the information prior to any decision that is made as a result of the information gathered by the judge or member of the judge’s staff. [4A] A judge may initiate, receive, permit, or consider ex parte communications when administering a specialized docket or an assisted outpatient treatment program established under the authority of the Rules of Superintendence or other law. In this capacity, judges may assume a more interactive role with parties, hospitals, treatment providers, local alcohol addiction and mental health services boards, probation or law enforcement officers, social workers, and others involved in monitoring treatment. [5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter and with judges who have appellate jurisdiction over the matter. [6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic. [7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge’s compliance with this code. Such consultations are not subject to the restrictions of division (A)(2). Comparison to Ohio Code of Judicial Conduct Rule 2.9(A) is substantially comparable to Ohio Canon 3(B)(7). Rule 2.9(A)(1) is substantially the same as Ohio Canon 3(B)(7)(a). Rule 2.9(A)(2) is comparable to Ohio Canon 3(B)(7)(b). Rule 2.9(A)(3) expands upon Ohio Canon 3(B)(7)(c) by describing conduct a judge should attempt to avoid when consulting with court staff and officials and other judges. Rule 2.9(A)(4), dealing with the judge’s settlement authority, has no comparable provision in the Ohio Code. Rule 2.9(A)(5) is comparable to Ohio Canon 3(B)(7)(d). Rule 2.9(A)(6), addressing the conduct of a judge who presides over a specialized docket, has no comparable provision in the Ohio Code. Rules 2.9(B), (C), and (D) have no comparable provisions in the Ohio Code. Comparison to ABA Model Code of Judicial Conduct The title to Rule 2.9 is modified to reflect more accurately the content of the rule. Rule 2.9(A) is modified to add a prohibition against the receipt of an ex parte communication, a concept contained in Ohio Canon 3(B)(7). Deleted from division (A) is a reference to a judge’s consideration of other communications outside the presence of the parties or their lawyers concerning a pending or impending matter. This phrase is incorporated in the definition of “ex parte communication” found in the Terminology section of the Code. Rule 2.9(A)(1) is modified to retain the provisions of Ohio Canon 3(B)(7)(a). Further, Model Rule 2.9(A)(1)(b) is deleted because if a judge complies with provisions of the modified rule, notice to the other parties is unnecessary. Rule 2.9(A)(2) retains the concept of after-the-fact notification to the parties when the judge obtains advice from a legal expert, as compared to the before- the-fact notice requirements contained in Model Rule 2.9(A)(2). The advance notice requirements contained in the Model Rules would be unworkable in many situations. Rule 2.9(A)(6) is added due the increasing prevalence of specialized dockets in Ohio and the necessity to make provision for the manner in which communications with parties and others must occur to facilitate the proper administration of a specialized docket. Comment [4] is divided into [4] and [4A] to treat two separate and distinct matters. Comment [4] deals with ex parte communications authorized by law and addresses the requirements in State v. Mason (1998), 82 Ohio St.3d 144 and State v. Smith (1991), 61 Ohio St.3d 284, as well as the well-recognized confidentiality in Ohio for referrals to a lawyer assistance program. Comment [4A] deals with ex parte communications that are necessary for proper administration of a specialized docket.