FINRA Rule 9143

The rule is the procedural embodiment of the fundamental due process principle that decisions in adversarial proceedings must be made on the basis of the record, with all parties having equal access to the information and arguments that inform the Adjudicator's judgment.

FINRA Rule 9143 sits within the 9140 Proceedings subsection of the 9100 Application and Purpose section of the 9000 Code of Procedure series. It was adopted by SR-NASD-97-28 effective August 7, 1997 and last amended by SR-FINRA-2008-021 effective December 15, 2008 as part of the consolidated FINRA rulebook transition announced in Regulatory Notice 08-57. The rule has not been substantively amended since its 2008 consolidation — its core prohibitions and structure have remained stable since the original 1997 adoption.

What Is an Ex Parte Communication

An ex parte communication — the Latin term meaning on one side only — is any communication about the merits of a proceeding made between one party or their representative and an Adjudicator or advising FINRA employee, without notice to and opportunity for all other parties to participate. The concept is foundational to adversarial adjudication across all legal and regulatory forums: the fairness and legitimacy of an adversarial decision depends on the Adjudicator receiving information and argument only through the official record, with all parties having equal opportunity to know what information the Adjudicator has received and to respond to it.

In the FINRA disciplinary proceeding context, an ex parte communication occurs when, for example, a respondent's counsel calls a Hearing Officer to discuss the merits of a pending motion without informing the Department of Enforcement and giving it an opportunity to participate; when the Department of Enforcement emails a Hearing Officer with additional argument after briefing has closed without copying the respondent; or when a Panelist on a Hearing Panel contacts a party's witness privately to discuss the witness's anticipated testimony. Each of these communications bypasses the official record and the equal participation rights of all parties — they are prohibited by FINRA Rule 9143 regardless of the good intentions of the communicating party.

The FINRA Guide to Expedited Proceedings captures the rule's essence precisely: parties and their representatives may not communicate with a Hearing Officer or panelist about the merits of the proceeding unless all parties receive prior notice and the opportunity to participate. A violation may result in remedial action adversely affecting a party's claims, defenses, and interests in the proceeding.

FINRA Rule 9143(a): The Two Prohibitions

FINRA Rule 9143(a) establishes two symmetrical prohibitions that together cover the full spectrum of potential ex parte communication paths in a Code proceeding.

FINRA Rule 9143(a)(1) prohibits parties, counsel or representatives of parties, and Interested FINRA Staff from making or knowingly causing to be made an ex parte communication relevant to the merits of a proceeding to an Adjudicator participating in a decision with respect to that proceeding, or to a FINRA employee participating or advising in an Adjudicator's decision. The relevant to the merits qualifier is important — not every communication between a party and an Adjudicator is prohibited. Administrative communications about scheduling, logistics, and procedural mechanics that do not touch on the substance of the dispute — confirming a hearing date, requesting a brief extension of time for a non-substantive filing, or addressing a technical filing issue — are not ex parte communications within the prohibition because they do not address the merits. The merits encompass the factual and legal substance of the proceeding — the charges, defenses, evidence, witness credibility, legal standards, and sanction appropriateness that the Adjudicator must decide.

The Interested FINRA Staff component of the prohibition addresses an important structural feature of FINRA's adjudicative system. FINRA Rule 9120(t) defines Interested FINRA Staff as those specific FINRA employees whose direct involvement in the investigation and prosecution of a matter creates a presumed interest in the outcome — the Head of Enforcement, all Department of Enforcement employees reporting to the Head, and any FINRA employee who directly participated in authorizing the complaint, the examination, the investigation, or the litigation of the specific proceeding. Interested FINRA Staff are prohibited from making ex parte communications to Adjudicators just as parties and their counsel are — this prohibition implements the separation of functions principle that FINRA Rule 9144 establishes and prevents enforcement staff from having informal access to Adjudicators that respondents lack.

FINRA Rule 9143(a)(2) establishes the mirror prohibition: no Adjudicator participating in a decision, and no FINRA employee participating or advising in an Adjudicator's decision, shall make or knowingly cause to be made an ex parte communication relevant to the merits to any party, counsel or representative of a party, or Interested FINRA Staff. This bidirectional prohibition closes the loop — Adjudicators are prohibited from seeking out private communications with parties just as parties are prohibited from initiating them. An Adjudicator who contacts one party privately to ask follow-up questions about their legal arguments, without giving the other party an opportunity to participate, has violated FINRA Rule 9143(a)(2) just as surely as a party who contacts the Adjudicator privately.

The two exceptions to the prohibition — communications on notice and opportunity for all parties to participate, and communications required for the disposition of ex parte matters as authorized by the Rule 9000 series — preserve legitimate communications while prohibiting improper ones. The all-parties-notice exception covers multi-party conference calls, group emails copying all parties, and any other communication format that gives everyone equal access and participation. The authorized ex parte matters exception addresses the narrow category of procedural matters that the Code itself treats as appropriate for ex parte handling — such as certain scheduling and administrative matters where the Rule 9000 series specifically authorizes the Adjudicator to act without notice to parties.

FINRA Rule 9143(b): Remedial Consequences

FINRA Rule 9143(b) provides the consequences available when a prohibited ex parte communication occurs — the enforcement mechanism that gives the prohibition its practical force. Upon receipt of a prohibited ex parte communication, FINRA or an Adjudicator may, to the extent consistent with the interests of justice, the policies underlying the Exchange Act, and FINRA rules, order the party responsible for the communication — or the party who may benefit from it — to show cause why their claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected by reason of the prohibited communication.

The show cause mechanism is the primary enforcement response. Rather than automatically imposing sanctions — which could be disproportionate to the severity of the specific communication — the rule requires the Adjudicator to direct the responsible party to explain why adverse consequences should not follow. This give-cause-and-show-cause structure allows the Adjudicator to assess the nature, content, and impact of the prohibited communication before determining the appropriate remedy, and gives the responsible party an opportunity to be heard before sanctions are imposed.

The range of available consequences — dismissal, denial, disregard, or other adverse effect on the party's claim or interest — is deliberately graduated and open-ended. A minor inadvertent ex parte communication with no substantive content might result in a warning or the placement of the communication in the record without further consequence. A deliberate and substantive ex parte communication designed to influence the Adjudicator's decision on a contested merits issue might result in sanctions as severe as dismissal of the responsible party's claims or defenses. The interests of justice standard — rather than a mandatory mechanical consequence — gives Adjudicators the flexibility to calibrate the response to the specific circumstances.

FINRA Rule 9143(b)'s final provision ensures that the record captures all aspects of the ex parte communication episode: all participants in the proceeding may respond to any allegations or contentions contained in a prohibited ex parte communication that has been placed in the record, and those responses are also placed in the record. This response mechanism serves the core ex parte prohibition's purpose — ensuring that information that has reached the Adjudicator through a prohibited channel is made available to all parties who can then respond on the record, restoring the equal information access that the ex parte communication temporarily disrupted.

FINRA Rule 9143(c): Temporal Scope

FINRA Rule 9143(c) establishes when the ex parte prohibition becomes effective in each type of Code proceeding — addressing the important question of how early in the enforcement process the prohibition applies.

In disciplinary proceedings governed by the Rule 9200 series and Rule 9300 series, the prohibition applies beginning with the filing of the complaint — the moment a formal disciplinary proceeding is initiated. Communications between parties and Adjudicators before a complaint is filed — during the investigation phase — are not governed by FINRA Rule 9143, though they remain subject to other FINRA rules and professional responsibility obligations. Once the complaint is filed and an Adjudicator is assigned, the prohibition operates continuously through the full disciplinary and appellate process.

For other proceeding types — expedited proceedings, eligibility proceedings, cease and desist proceedings — the prohibition applies from the initiation of the specific proceeding, which varies by proceeding type. The Rule 9000 series rules governing each proceeding type specify when proceedings are formally initiated and therefore when FINRA Rule 9143's prohibition activates.

The minor rule violation plan letter exception in FINRA Rule 9143(c) addresses a specific practical situation arising from FINRA's AWC and minor rule violation settlement processes. When a member or associated person submits an executed minor rule violation plan letter under FINRA Rule 9216(b), the submission constitutes a waiver of any claim that the prohibitions against ex parte communications were violated in connection with discussions about the terms and conditions of the plan letter. This waiver provision acknowledges the practical reality that the negotiation of settlement terms in AWC and minor rule violation contexts necessarily involves communications between FINRA staff and the settling party about the substance of the charges and proposed sanctions — communications that would technically involve Interested FINRA Staff and potentially implicate FINRA Rule 9143 absent the waiver. The waiver applies only to communications in connection with the specific settlement negotiation, not to any broader waiver of ex parte protections in the proceeding.

The Relationship to FINRA Rule 9144: Separation of Functions

FINRA Rule 9143's ex parte prohibition and FINRA Rule 9144's separation of functions requirement are companion rules that address the same underlying due process concern from different angles. FINRA Rule 9143 prohibits improper communications between the adjudicative and prosecutorial functions — ensuring that Adjudicators receive information only through the official record. FINRA Rule 9144 prohibits Interested FINRA Staff from participating in the adjudicative decision-making function — ensuring that enforcement staff cannot be both prosecutor and Adjudicator in the same proceeding. Together the two rules implement the structural separation between investigation and prosecution on one side and adjudication on the other that makes FINRA's disciplinary system procedurally fair and constitutionally sound.

The Interested FINRA Staff definition in FINRA Rule 9120(t) — which appears in both FINRA Rule 9143's prohibition and FINRA Rule 9144's separation requirement — creates the crucial institutional boundary. Interested FINRA Staff are precisely those employees whose prosecutorial involvement in a matter makes their participation in adjudication a due process violation — and their communication with Adjudicators about the merits an ex parte violation. The two rules enforce this boundary from both directions: FINRA Rule 9143 prohibits the communication, and FINRA Rule 9144 prohibits the participatory involvement.

Practical Significance for Counsel in FINRA Proceedings

For securities defense attorneys practicing before FINRA Adjudicators, FINRA Rule 9143's prohibition creates specific practical obligations that differ from informal contact norms in non-adversarial regulatory settings. Attorneys who previously dealt with FINRA staff in an advisory or examination capacity — where informal communications about compliance issues were routine and appropriate — must recognize that once a formal proceeding is initiated, those informal communication channels are categorically prohibited with respect to the proceeding's merits.

The practical guidance that OHO provides to parties confirms this directly: parties may not contact Hearing Officers or Panelists privately about the merits of their case. All substantive communications must flow through formal filings — motions, briefs, responses, and the hearing record itself. Administrative questions about scheduling and logistics that do not touch on the merits may be addressed through OHO administrative staff rather than directly to the Hearing Officer, preserving the adjudicator's isolation from party contact while allowing necessary case administration to proceed.

Examination Relevance and Key Takeaways

FINRA Rule 9143 is tested on the Series 24 General Securities Principal examination in the context of the Code of Procedure's fairness safeguards, the due process requirements applicable to FINRA disciplinary proceedings, and the structural separation between FINRA's enforcement and adjudicative functions. The rule's connection to FINRA Rule 9144's separation of functions requirement and the Interested FINRA Staff definition in FINRA Rule 9120(t) makes it a central rule in any examination question addressing the procedural integrity of FINRA's disciplinary system.

The key points to retain are these: FINRA Rule 9143 prohibits ex parte communications — private communications about the merits of a proceeding without notice to and participation opportunity for all parties — in all Code proceedings; the prohibition is bidirectional, applying both to parties, their counsel, and Interested FINRA Staff making communications to Adjudicators and to Adjudicators making communications to parties and Interested FINRA Staff; an ex parte communication relevant to the merits is prohibited — administrative communications about scheduling and logistics that do not touch on the substance of the dispute are not prohibited; two exceptions apply — communications on notice and opportunity for all parties, and communications required for disposition of ex parte matters authorized by the Rule 9000 series; upon receipt of a prohibited communication FINRA or an Adjudicator may order the responsible or benefiting party to show cause why their claim or interest should not be dismissed, denied, disregarded, or otherwise adversely affected; all parties may respond to prohibited communications placed in the record and those responses are also placed in the record; the prohibition applies from the filing of the complaint in disciplinary proceedings and from the initiation of the relevant proceeding in other Code proceeding types; submission of an executed minor rule violation plan letter constitutes a waiver of any claim that ex parte prohibitions were violated in the settlement negotiation discussions; FINRA Rule 9143 and FINRA Rule 9144 are companion rules implementing the same due process principle — FINRA Rule 9143 prohibiting improper communications and FINRA Rule 9144 prohibiting improper structural participation; and the rule was last amended December 15, 2008 through SR-FINRA-2008-021 and has not been substantively amended since original adoption in 1997.