Rules of Professional Conduct

3. Advocate

ER 3.5.     Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official of a tribunal by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:
      
       (1) the communication is prohibited by law or court order;
      
       (2) the juror has made known to the lawyer a desire not to communicate; or
      
       (3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct likely to disrupt a tribunal.

Comment

[1] Many forms of improper influence upon a tribunal are proscribed by criminal law.  Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar.  A lawyer is required to avoid contributing to a violation of such provisions.

[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, court-appointed arbitrators, masters or jurors, unless authorized to do so by law or court order.  Lawyers should refer to the Code of Judicial Conduct, Rule 2.9 for authorized ex parte communications.

[3] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged.  The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer.  The lawyer may not engage in improper conduct during the communication. 

[4] The advocate's function is to present evidence and argument so that the cause may be decided according to law.  Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants.  A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate.  An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

[5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.  See ER 1.0(m).

[6] At times, a government entity is required to act in a “quasi-judicial” capacity as part of an administrative process. In that capacity, it may act as the decision-maker in contested proceedings or hear appeals from the determinations of another officer, body or agency of the same government. A government lawyer may be called upon to advise the tribunal after another lawyer in the same office has advised the other government constituent about the matter, or while another attorney from the same office appears before the tribunal. Advice given by the lawyer to the tribunal does not constitute impermissible ex parte contact, provided that reasonable measures are taken to ensure the fairness of the administrative process, such as using different attorneys to advise and represent the two constituents and screening those lawyers from one another or strictly limiting the lawyer's advice to the tribunal to procedural matters.In no event can the same lawyer both provide advice to the tribunal and appear before it in the same matter, even if the advice is limited to procedural advice.



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