ER 3.5 Impartiality and Decorum of the Tribunal

The Standard

Pursuant to ER 3.5, a lawyer shall not seek to influence a judge, juror, prospective juror or other official of a tribunal by means prohibited by law.

The Limitations

Under ER 3.5(b), a lawyer shall not communicate ex parte with such persons unless authorized to do so by law or court order. Ex parte communications cast doubt upon the adversary system and give the appearance of favoritism. They deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. See San Carlos Apache Tribe v. Bolton ex rel. County of Maricopa, 194 Ariz. 68, 72 (1999).

After discharge of the jury, a lawyer shall not communicate with a juror or prospective juror if: (1) the communication is prohibited by law or court order; (2) the juror had made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress of harassment. ER 3.5(c)

A lawyer can’t engage in conduct likely to disrupt a tribunal. ER 3.5(d)

FAQs

May I go to the judge’s chambers and speak with the judge about an Order that I know was wrongly entered?

No, that would constitute an improper ex parte communication.

Is all communication with a judge ex parte?

Communications with a judicial officer on matters wholly unrelated to litigation matters before the court are not ex parte communications. If they were, judges would, as a practical matter, be precluded from conversing with any lawyers, either through professional associations or bar committee, or socially. State Bar Ethics Op. 90-20. The judge may have to disclose some relationships to opposing counsel in litigation if the judge thought that, because of such a relationship, his or her impartiality might reasonably be questioned. See Judicial Canon 3. Under certain circumstances, a judge may consider disclosing contacts with opposing counsel on unrelated matters, such as law-related education programs or bar committee work, simply to avoid the appearance of impropriety as required by Judicial Canon 2.

The administrative law judge wants to contact parties directly for the limited purpose of scheduling hearings. Is this permissible?

There are better alternatives to such contact: conference calls can be arranged or an email addressed to all parties could be sent. The judge could also establish a routine status conference with all parties to discuss scheduling and other administrative matters. Ariz. State Bar Ethics Op. 87-17.

After the jury is discharged, may I review a juror’s Facebook or LinkedIn page?

According to ABA Formal Opinion 466 (April 24, 2014), the ABA Committee determined that overt contact like “friending” is a prohibited communication. But the Committee determined that the lawyer is not communicating with a juror if the website sends an automatically generated notice to the juror telling them that the lawyer was reviewing their website. The opinion stated “this is akin to a neighbor recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”

This page is managed by Patricia Seguin

ER 3.5 Impartiality and Decorum of the Tribunal

The Standard

The Limitations

FAQs

Best Practices

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