Disrupting the Tribunal

Rule 3.5(d) closes the list of prohibitions with one short clause: a lawyer may not "engage in conduct intended to disrupt a tribunal."¹ The earlier paragraphs of the rule guard private routes to a decision-maker. This one guards the open proceeding, where a lawyer can do harm in plain view by making it impossible for the tribunal to work. The clause has two elements, the conduct and the intent, and the word "intended" decides most cases.

The ban rests on the advocate's role. The commentary, as an opinion quotes it, says the advocate's function is to present evidence and argument so that the cause may be decided according to law, and that refraining from undignified or discourteous conduct is a corollary of the advocate's right to speak on behalf of litigants.² Inside the courtroom, a lawyer's freedom of speech is significantly curtailed by duties to the client and to the tribunal. The ban on disruptive conduct sits on a list of courtroom limits that also forbids alluding to irrelevant or inadmissible matters, asserting personal knowledge or opinions at trial, engaging in ex parte communications with the judge or jury, and using means designed only to embarrass or burden a witness or party.³

The intent element separates deliberate obstruction from ordinary courtroom friction. A trial is adversarial. Lawyers press witnesses, interrupt, and raise their voices, and a heated moment is not disruption unless the lawyer meant to keep the tribunal from doing its work. Lawyers rarely admit that purpose, so on an exam you read it from the facts: whether the conduct was repeated, whether it continued after a warning, and whether it served any legitimate purpose in presenting the case.

The commentary draws the contrast itself: it sets patient firmness against "belligerence or theatrics."⁴ The courtroom list also gives witness-directed tactics their own entry, means designed only to embarrass or burden a witness.⁵ Discomfort to a witness is therefore not the test for disruption. The test is whether the lawyer intended to disrupt.

The commentary supplies the lawful alternative. 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."⁶ An advocate, it adds, "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."⁷ The second sentence shows that compliance costs the client little. An objection, an offer of proof, and a request for a ruling put the error in the record for review, and volume adds nothing there. The first sentence closes a tempting excuse, because a judge's own intemperance does not license a lawyer to answer in kind.

Improper argument resembles disruption only on the surface. In Darden v. Wainwright, the dissent quoted the standard that "[t]he prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury," and recounted that the prosecutor repeatedly voiced a wish that he "could see [the defendant] sitting here with no face, blown away by a shotgun."⁸ That is the dissent's account, not a holding, and it measured the remarks against the standard on inflammatory argument, not against a rule on disruption. The prosecutor was addressing the jury, however improperly, in pursuit of a verdict, so the complaint concerns what he argued. An exam answer should send argument of that kind to the rules and standards on argument, unless the facts also show a purpose to derail the proceeding.

The label ex parte turns up in two different places, and exam questions like to blur them. The courtroom list bans ex parte communications with the judge or members of the jury.⁹ Rule 4.2, called the ex parte contact rule or anti-contact rule, bars a lawyer from communicating about the subject matter of the representation with anyone the lawyer knows to be represented by counsel in the matter, without the other lawyer's consent.¹⁰ Neither rule asks whether the proceeding fell into disorder. Each asks who was contacted, and whether the other side was left out.

Exam Analysis Steps

Because the prohibition turns on purpose, work through the facts in an order that reaches intent before you apply any label such as rudeness or defiance.

Confirm the setting: a lawyer representing a client in an adjudication before a tribunal, acting in the courtroom.
Identify the conduct, such as shouting at a witness, talking over the judge, or sustained theatrics.
Ask whether the lawyer intended to disrupt, reading intent from the circumstances: repetition, persistence after a warning, and whether the conduct served any purpose in presenting the case.
Ask whether the lawyer used the commentary's alternative instead: a respectful objection, protection of the record for review, and patient firmness.
Check the neighbors. Alluding to inadmissible matters, asserting personal opinion, inflammatory argument, and ex parte contact are separate concerns, and the same facts may raise them without showing disruption.

Step three does the real work. Students often stop at step two and call any loud or rude behavior a violation. The rule asks whether the lawyer meant to stop the tribunal from functioning, and a lawyer who was merely heated, clumsy, or forceful in presenting the case has not met that element.

Disrupting the Tribunal

Endnotes12