Purpose and Reach of the Rule

Protecting the Tribunal

Purpose and Reach of the Rule

Rule 3.5 is titled “Impartiality and Decorum of the Tribunal,” and it is built as a list. Its lead-in, “A lawyer shall not:”, makes every item beneath it a restraint on the lawyer’s own conduct.¹ In Lisi v. Several Attorneys, the court set out the version of the rule that applied to conduct occurring after November 15, 1988, and that version had three items. A lawyer shall not (a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;² (b) communicate ex parte with such a person except as permitted by law; or (c) engage in conduct intended to disrupt a tribunal.³ That text says nothing about contact with jurors after they are discharged, a subject the sections below take up. Each item has its own elements, and later sections treat them one at a time. This section asks what the three share, because that shared concern explains who is protected, where the rule operates, and why it binds lawyers.

A tribunal is supposed to decide on what the parties put before it openly. Take a suit in which home buyers ask a court to rescind a home purchase and the contested question is whether the seller had to disclose past termite infestation.⁴ Each side expects to hear whatever the other tells the judge, and to object, correct, or reply before the judge rules. A private word to the judge from one lawyer breaks that expectation. An ex parte communication reaches the decision-maker from one side only, so the opponent never learns what was said and never gets to answer it. Lawyers are the people likeliest to open such a channel, since they know the case, know the decision-maker, and want a particular result. The rule therefore addresses them directly.

Subsection (a) borrows part of its standard from outside the professional rules. Because it asks whether the lawyer sought influence “by means prohibited by law,” other law decides which means are improper, and that law includes the criminal law.⁵ A comment to Michigan’s version of the rule makes the same point: criminal law proscribes many forms of improper influence upon a tribunal, and the state’s code of judicial conduct specifies others, a code with which an advocate should be familiar.⁶ A lawyer who bribes a juror therefore breaks the professional rule and the criminal law with the same act.

The rule names four kinds of protected person: judges, jurors, prospective jurors, and “other official[s].” The third category protects the jury pool before anyone is chosen, so a person who has been summoned for jury service but not yet selected is already shielded. The fourth category is open-ended, and Rule 3.9 shows how far it can stretch. A lawyer who represents a client before a legislative body or administrative agency in a nonadjudicative proceeding must disclose the representative capacity and must conform to Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5, so the limits of Rule 3.5 follow the lawyer into rule-making and policy-making forums.⁷

Rule 3.5 is also bounded. Its subject is a lawyer’s dealings with the people who decide a matter, and other rules govern other relationships. Rule 4.2, for example, forbids a lawyer to communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless that lawyer consents or law or a court order authorizes the contact.⁸ The protected person there is a represented party rather than a decision-maker, and the interest at stake is the attorney-client relationship rather than the tribunal’s impartiality.

A harder boundary question is whether Rule 3.5 reaches a lawyer’s public comments about a judge when no matter is pending before that judge.

One opinion in Grievance Administrator v. Fieger, a Michigan decision applying Michigan’s version of the rule, supports that answer. It reasoned that the other subsections of Rule 3.5 prohibit seeking to influence judges, jurors, and other officials and prohibit ex parte communications, and that the remaining rules in the advocate chapter, including those headed “Candor Toward the Tribunal” and “Trial Publicity,” pertain to a lawyer’s direct dealings with the court system. None of them, by heading or content, purports to govern conduct unrelated to a potential or ongoing proceeding before a tribunal.⁹ Treat the passage as a persuasive account of the rule’s scope, because it comes from one state’s decision about one state’s rule. Speech about a proceeding is not left unregulated. The trial-publicity rule, Rule 3.6, exists to strike a balance between the right to a fair trial and the right of free expression. It generally prohibits extrajudicial statements with a substantial likelihood of materially prejudicing an adjudicative proceeding, permits statements on matters unlikely to cause prejudice or of strong public interest, and allows a lawyer a fair response to prejudicial publicity.¹⁰