The opinion
WYNN, Judge
concurring in the result.
I write separately to note in passing 1 an apparently on-going occurrence in our judiciary in which judges are permitted, without restriction, under our Code of Judicial Conduct to engage in ex parte discussions on issues of law with individuals (“disinterested experts”) who are not parties to the proceeding. N.C. Code of Judicial Conduct Canon 3(A)(4) (2003). 2
In this case, the trial court initially indicated that it would admit evidence of a telephone conversation that Corriher allegedly had with Defendant. Shortly thereafter, however, the State withdrew Corriher’s testimony. The trial court responded that it thought the testimony was admissible and had conferred with the Institute of Government during the lunch recess. After probing by defense counsel, the trial judge revealed the name of the individual that he spoke to at the Institute of Government, “Ms. Smith.”
*634 While this assertion by the trial judge appears at first glance to be benign, I believe it raises a strong concern regarding the apparently common practice of judges consulting “disinterested experts” or obtaining opinions from non-judicial entities such as the Institute of Government 3 on the law applicable to a proceeding before them.
The primary reason that ex 'parte communications are prohibited, is to ensure that parties appearing “before a judge have access to the relevant materials on which a judge may rely.” Andrew L. Kaufman, Judicial Ethics: The Less-Often Asked Questions, 64 Wash. L. Rev. 851 , 856 (1989). Nearly all states that allow a judge to engage in ex parte communication with an expert on the law require that certain due process and notice concerns be given to the parties. Indeed, those states generally track the language of the American Bar Association Model Code of Judicial Conduct Canon 3(B)(7) which gives guidance to the judiciary on the use of a disinterested expert. 4 The ABA Model Code of Judicial Conduct Canon 3(B)(7)(b) provides: “A judge may obtain the advice of a disinterested expert on the law *635 applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.” Thus, the Model Code requires that the trial judge give the parties notice of the expert consulted and the substance of the advice, as well as requires that the parties be given a chance to respond. But see Alaska Code of Judicial Conduct Canon 3(B)(7) (2005) (commentary to rule states “A judge may not ex parte seek advice on the law applicable to a proceeding from a disinterested expert.”).
In contrast, our Code of Judicial Conduct does not give any guidance to the judiciary as to who is a “disinterested expert,” whether the parties should be notified, whether the parties must be told the substance of the communication, whether the parties must be given a chance to respond to the expert’s advice, or what exactly a judge may ask the expert. Instead, Canon 3(A)(4) unrestrictively provides that: “A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him.”
Significantly, even in a criminal proceeding in which defendants are constitutionally entitled to be present at every critical stage of the criminal proceeding, U.S. Const, amend. VI; N.C. Const, art. I, § 23, our Code provides for no notice to parties of the ex parte communication with a “disinterested expert.” 5 This creates a problem as the expert contacted by the trial judge is supposed to be disinterested in the parties, the issues and facts of the proceeding, and the outcome of the proceeding. Giving the parties notice of the ex parte communication, as well as the identity of the expert contacted and substance of the advice given, is prudent because
it cannot be assumed that legal and other experts will give only objective advice. They may have developed philosophical loyalties which affect the advice that they give; as practicing attorneys they may have cases involving the same problems on which they are rendering advice; as consultants they may owe allegiance to business or other interests that could benefit from acceptance by courts of their viewpoints.
In re Fuchsberg, 426 N.Y.S.2d 639 , 648 (N.Y. Ct. Jud. 1978).
*636 Further, our Code does not require the court to allow parties a chance to respond to the substance of the advice given by the judge. “Unless the parties are given the opportunity to respond to the expert and the substance of his advice, his prejudices and preconceptions may go unchallenged. In short, the practice of judicial consultation with experts without notice to the parties is fraught with dangers.” Id.-, see also Leslie W. Abramson, The Judicial Ethics of Ex Parte and Other Communications, 37 Hous. L. Rev. 1343 , 1374 (2000).
Clearly, Canon 3(B)(7) of the ABA Model Code gives a great deal more protection to the parties than.does Canon 3(A)(4) of the N.C. Code of Judicial Conduct. But in the interest of protecting the independence, impartiality, and integrity of our judiciary, our judges should be cautious about having an ex parte communication with an “expert.” At the very least, judges should give notice to the parties of the communication, the identity of the “disinterested expert,” the substance of the communication, and afford the parties an opportunity to respond. 6 See In re Fuchsberg, 426 N.Y.S.2d at 648 (“Ex parte conversations or correspondence with experts, law teachers or otherwise, is unfair and can be misleading. The facts given may be incomplete or inaccurate, the problem can be incorrectly stated or other matters can be incorrectly stated.”) (internal citation omitted).
It is essential that the independence, impartiality and integrity of the judiciary in the decision-making process are protected. After all, “[a]n independent and honorable judiciary is indispensable to justice in our society.” N.C. Code of Judicial Conduct Canon 1.
. The practice of our courts commenting on relevant matters in the record that are not raised by the parties is well established by “noting in passing.” See, e.g., First Nat’l Bank of Lumberton v. McCaskill, 174 N.C. 390, 391 , 93 S.E. 905, 905 (1917) (“notpng], in passing,” the personal history of a party to a prior case); Onuska v. Barnwell, 140 N.C. App. 590, 591 , 537 S.E.2d 840, 841 (2000) (“notpng] in passing” an incorrect citation); State v. Jenkins, 21 N.C. App. 541, 543 , 204 S.E.2d 919, 921 (1974) (“not[ing] in passing” that a breathalyzer test does not give rise to the inference that a party was “under the influence.”). While not binding, this practice allows our courts to move beyond the technical rules of appeal to provide guidance for improving the legal profession.
. Canon 3(A)(4) of the North Carolina Code of Judicial Conduct provides:'
A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him.
. The mission of the Institute of Government located at the University of North Carolina at Chapel Hill is: “To provide to state, county, and municipal officials and employees programs of instruction, research, and consultation to help them improve and maintain their effectiveness, efficiency, and economy. The institute also provides special programs for the news media and non-profit organizations with govemmentally related purposes.” Institute of Government, available at httn://www.ncruralcenter.org/guidebook/viewresource.asp?ID=27 (last visited 24 June 2006). The mission statement does not indicate the Institute of Government provides any services for criminal defendants.
. The following states follow Model Code of Judicial Conduct Canon 3(B)(7): Ala. Canons of Judicial Ethics Canon 3(A)(4); Ark. Code of Judicial Conduct Canon 3; Cal. Code of Judicial Ethics Canon 3(B)(7); Colo. Code of Judicial Conduct Canon 3(A)(4); Conn. Code of Judicial Conduct Canon 3(A)(4); Del. Judges’ Code of Judicial Conduct Canon 3(A)(4); Fla. Code of Judicial Conduct Canon 3(B)(7)(b); The Ga.' Code of Judicial Conduct Canon 3(B)(7); Haw. Code of Judicial Conduct Canon 3(B)(7); Idaho Code of Judicial Conduct Canon 3(B)(7); Ind. Code of Judicial Conduct Canon 3(B)(8); La. Code of Judicial Conduct Canon 3(A)(4); Me. Code of Judicial Conduct Canon 3(B)(7); Md. Code of Judicial Conduct Canon 3(A)(5); Mich. Code of Judicial Conduct Canon 3(A)(4); Minn. Code of Judicial Conduct Canon 3(A)(4); Miss. Code of Judicial Conduct Canon 3(B)(4); Mo. Code of Judicial Conduct Canon 3(B)(7); Neb. Code of Judicial Conduct Canon 3(B)(7); Nev. Code of Judicial Conduct Canon 3(B)(7); N.J. Code of Judicial Conduct Canon 3(A)(6); N.M. Code of Judicial Conduct Rule 21-300(B)(7); 22 N.Y.C.R.R. § 100.3(B)(6); N.D. Code of Judicial Conduct Canon 3(B)(7); Ohio Code of Judicial Conduct Canon 3(B)(7); Okla. Code of Judicial Conduct Canon 3(B)(6); R.I. Code of Judicial Conduct Canon 3(B)(8); S.C. Code of Judicial Conduct Canon 3(B)(4); S.D. Code of Judicial Conduct Canon 3(B)(7); Tenn. Code of Judicial Conduct Canon 3(B)(7); Tex. Code of Judicial Conduct Canon 3(B)(8); Utah Code of Judicial Conduct Canon 3(B)(7); Vt. Code of Judicial Conduct Canon 3(B)(7); Va. Canons of Judicial Conduct Canon 3(B)(7); W. Va. Code of Judicial Conduct Canon 3(B)(7); Wis. SCR 60.04(l)(g); Wyo. Code of Judicial Conduct Canon 3(B)(7).
. In this case, the trial judge consulted the Institute of Government. Given that the mission of the Institute of Government is to serve only governmental entities (see, supra, footnote 3), it is questionable as to whether the Institute of Government qualifies as a “disinterested expert” on the law in a criminal proceeding.
. It should be noted that in North Carolina, our trial judges are not provided research assistants. In federal courts, and increasingly in many state jurisdictions, trial judges are being provided the assistance of law clerks, which lessens the need to seek advice from “disinterested experts” on the law applicable to proceedings before them.