Today, the Court protects from disclosure nearly a third of the sealed transcript of a lawyer’s in-chambers, ex parte argument and instructs our clerk to release the redacted copies of the transcript. By unsealing two-thirds of the record, the Court tacitly ac*328knowledges that the bulk of the government attorney’s ex parte argument could have been made in open court and therefore was improper. The court of appeals characterized the hearing behind closed doors as a “Star Chamber” proceeding and ordered the entire transcript unsealed. 910 S.W.2d 73. I too would unseal the entire record because of the utter lack of evidence to justify such a highly irregular and disfavored procedure.1 I concur only in the Court’s holding that the court of appeals should not have assessed costs against the government.
Without evidence of any kind, we have only the government attorney’s conclusory statement that she was revealing grand jury secrets protected by Rule 6(e) of the Federal Rules of Criminal Procedure. Her unsworn statements are not enough to prove the government’s privilege, and therefore the government cannot justify excluding Marks’s counsel from the proceeding. Because the ex parte proceeding was improper, sealing the record afterwards cannot be sustained. Certainly, the government has failed to justify keeping the record sealed in perpetuity.
An understanding of the events of that October 18, 1994 hearing is necessary to appreciate the issues involved. Judge David Cave was the third judge to hear this matter. Judge Ted Akin had granted Marks’s request to perpetuate testimony by deposition. Judge John Whittington heard and overruled Feldman’s motion to quash the deposition. The court had scheduled a hearing for October 18 to consider Feldman’s motion to reconsider. At the beginning of the hearing, the government presented its motion for intervention, a motion for reconsideration of the order to perpetuate testimony, a motion for the attorney to appear in a Texas court pro hac vice, and an affidavit in support of the pro hac vice motion. The motion to intervene alleges that the Office of Independent Counsel told both Feldman and Marks that it and the grand jury were investigating:
possible criminal violations connected to Mr. Marks’s federal income tax returns. The matters under criminal investigation appear to be the same as those identified [in Marks’s] Verified Petition as subjects upon which Mr. Marks seeks to depose Mr. Feldman_ The documents that Petitioner seeks to compel Mr. Feldman to produce also relate directly to matters that the Petitioner and his counsel have been notified are encompassed by the Independent Counsel’s investigation.
In open court, the government attorney represented that Marks is a target in the investigation and that Feldman is at least a witness.
The government asked for an ex parte hearing to present its reasons for delaying the deposition. The court agreed to conduct the hearing in chambers, excluding the other attorneys. When the court started to swear in the government attorney, however, she argued that it was not necessary. Over Marks’s strenuous objection, the government attorney was not sworn before retiring to chambers.
During the ex parte proceeding, the government attorney argued matters clearly not protected by grand jury secrecy, as our Court recognizes by unsealing roughly two-thirds of the statement of facts. For example, she argued that Feldman seemed fairly healthy, so Marks had no immediate need to perpetuate his testimony. In the course of her argument, the government attorney mentioned, as the Court puts it, “what documents had been produced before the grand jury, who was being investigated, what charges were being considered, and how Feldman’s deposition would affect the investigation.” 949 S.W.2d at 324. She did so, however, in very vague terms. She did not state the basis of her knowledge, her role in the investigation, or how long she had worked on the case. The basis of her statements seems to be, “I’m with the government; you can trust me on this one, Judge.”
*329Before returning to the courtroom, the ti'ial judge used the government’s attorney as its messenger to ask questions of the excluded attorneys. When the judge and the government attorney returned to the courtroom, the court granted the government all of the relief it requested. No evidence was introduced at any point in the proceeding. Thus, it is clear that the court reversed the decision of two prior judges based solely on the private argument in chambers.
Perhaps there is no greater threat to the public’s confidence in an independent and honorable judiciary than the perception that one party has special access to the court. See In re Thoma, 873 S.W.2d 477, 496-500 (Tex.Rev.Trib.1994). Judges “shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.” Tex.Code Jud. Conduct, Canon 3(B)(8) (1994). For that reason the Texas Code of Judicial Conduct demands that a judge shall not permit ex parte communications concerning the merits of a pending judicial proceeding “except as authorized by law.” Id. Canon 3(B)(8)(e). They are never proper merely to “gain the final word during judicial deliberations.” Remington Arms Co. v. Canales, 837 S.W.2d 624, 626 n. 3 (Tex.1992). Yet ex parte communications are sometimes necessary in extraordinary, exigent situations. Barnes v. Whittington, 751 S.W.2d 493, 495 n. 1 (Tex.1988).
Because of the extreme dangers inherent in ex parte proceedings, they must be conducted with strict procedural safeguards. It is imperative that a court make a statement of facts of the hearing, as this court did. Moreover, the court must continually evaluate whether compelling, exigent circumstances justify continuing the proceeding ex parte. I would hold that the ex parte communicant has the burden of establishing that the circumstances warrant proceeding in chambers.
Moreover, at the end of the presentation, the court must evaluate whether the record of the proceeding may be sealed. A court must be especially vigilant when the motion to seal is opposed by a party excluded from the room. Because of the extreme hazards in proceeding ex parte, I would hold that the record of the proceedings may be sealed only if the communicating party has put into the record facts that establish compelling, exigent circumstances. The record must be sufficient so that an appellate court may make a reasoned determination whether the ex parte proceeding and the trial court’s sealing order were abuses of discretion. The record in this case makes such a determination impossible.
As mentioned, no one introduced any evidence in this hearing, either in open court or in chambers. The Court could only have reached its conclusion by accepting the government lawyer’s arguments at face value. However, it is axiomatic that, absent waiver, unsworn statements by an attorney are not evidence. See, e.g., Goode v. Shoukfeh, 915 S.W.2d 666, 671 (Tex.App.—Amarillo 1996), aff'd on other grounds, 943 S.W.2d 441 (Tex.1997); Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex.App.—Austin 1990, no writ); Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 533 (Tex.App.—San Antonio 1988, writ denied); accord United States v. Livingston, 816 F.2d 184, 196 (5th Cir.1987). The Court agrees, but argues that the lawyer’s statements may be given “significance,” analogizing to our opinion in Goode, which concerned peremptory strikes. But the Court is selective in its quote from Goode, when it says, “ ‘[u]nsworn statements of counsel may be offered to explain why the peremptory challenges were exercised.’ ” 949 S.W.2d at 327 (quoting Goode v. Shoukfeh, 943 S.W.2d 441, 451 (Tex.1997)). In context, we said:
Consideration of an Edmonson [v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)] challenge is by its very nature adversarial. Further, this Court has often held that ex parte, in camera procedures are disfavored. See, e.g., Remington Arms Co. v. Canales, 837 S.W.2d 624, 626 (Tex.1992). Accordingly, at a minimum, the proceedings should be held in open court. Un-sworn statements of counsel may be offered to explain why the peremptory challenges were exercised.
*330Goode, 943 S.W.2d at 451. It is one thing to give significance to statements in open court, in which the protections of adversarial proceedings provide some balance. It is quite another to give decisive “significance” to statements made behind closed doors. In Goode, we held that while an attorney exercising peremptory strikes may give unsworn statements about the reasons for exercising the strikes, the opposing party is entitled to rebut those statements, and may cross-examine the attorney exercising the strikes under oath. Id. at 452. How was Marks to rebut what was said in this trial court’s chambers?
The Court takes comfort in the fact that the Texas Rules of Professional Conduct apply to the government’s attorney. I assume she took seriously her duties as an officer of the court pro hac vice. I must also assume, however, that she zealously represented her client, asserting the broadest application of the grand jury privilege as good conscience would allow. Moreover, ethical rules provide no protection against the possibility that the government attorney was simply wrong about what was and was not a grand jury secret. Since the attorney never stated the basis of her knowledge, no court can judge the reliability of her statements.
For the same lack of proof, the government utterly failed to establish that its attorney’s arguments were protected by Rule 6(e) of the Federal Rules of Criminal Procedure. I agree that the Rule creates a privilege for grand jury secrets. I further agree in the abstract that preserving the confidentiality of grand jury proceedings could provide compelling circumstances for sealing the record. However, as the court of appeals noted, “Grand jury secrecy is no magical incantation making everything connected with the grand jury’s investigation somehow untouchable.” 910 S.W.2d at 77 (citing In re September 1971 Grand Jury, 454 F.2d 580, 583 (7th Cir.1971)). Federal Rule 6 does not protect information that only potentially could come before a grand jury. United States v. Eastern Air Lines, 923 F.2d 241, 244 (2nd Cir.1991); In re Grand Jury Investigation, 610 F.2d 202, 216 (5th Cir.1980). Information that is obtained independent of the grand jury process is not protected by Federal Rule 6. In re Grand Jury Investigation, 610 F.2d at 216. A prosecutor’s strategy and actions outside the presence of a grand jury are not necessarily the same as a grand jury secret. See id. at 217 & n. 5 (report that Justice Department would not decide whether to seek indictment concerns only actions by the Justice Department, not the grand jury).
As these cases illustrate, whether something is a grand jury secret depends on the facts of the case. By accepting the attorney’s ex parte statements uncritically, the Court places the burden on Marks to disprove the grand jury privilege. However, our discovery rules have always placed the burden on the party seeking to protect information from discovery to establish the privilege. See Tex.R. Civ. P. 166b(4); Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989); Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986). Similarly, the government should have the burden of putting into the record such underlying facts as would permit the judge to reasonably determine that the information cannot be disclosed without compromising a grand jury investigation.
The Court today suggests that this sort of thing goes on all the time. In every case it cites, however, the ex parte proceeding included the presentation of evidence. For example, in the case the Court principally relies upon, In re Eisenberg, 654 F.2d 1107 (5th Cir.1981), the appellant sought to perpetuate testimony in anticipation of litigation under the federal rules by deposing an agent of Scotland Yard. The government intervened and offered affidavits and other documents ex parte in opposition to the deposition. Id. at 1112. Neither Eisenberg nor any other case cited by the Court involved a government attempt to influence a decision based solely on unsworn arguments made in chambers.
The sealed transcript here is devoid of any facts upon which the trial judge could make reasonable determination of the need to maintain secrecy. The Court has no basis for evaluating whether any of the statements by the government’s attorney at this ex parte hearing revealed or tended to reveal any *331matters that had occurred before the grand jury.
The Court gives lip service to the rules against ex parte proceedings. It states that the circumstances for denying a party the right to be present “must be carefully circumscribed.” 949 S.W.2d at 325. The Court then places no demands on the government to justify the secret argument in this case. In my opinion, the entire ex parte proceeding, without any evidence in the case to justify it, was an improper attempt to influence the Court’s decision. I would therefore order unsealed the entire record of the proceedings in chambers.
. The statement of facts of the in camera hearing at issue in this appeal was never made a part of the appellate record. I alone dissented from the Court's decision to order supplementation. I would have reviewed the record as it was filed for reversible error. (Gonzalez, J., dissenting.) My view did not prevail, however, and I accept the Court’s decision as the law of the case.