Applying the Rule to a Sympathetic Lawyer

Applying the Rule to a Sympathetic Lawyer

Rule 3.5(b) forbids a lawyer to "communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order."¹ The earlier sections took that sentence apart one phrase at a time. The best test of whether the parts fit together is a case in which the lawyer has an excellent reason to act, because sympathetic lawyers are where students most want to find an excuse. The scenario below is the version an exam is likely to offer, with plenty of reasons to hesitate.

The analysis runs through five questions in order.

1. Recipient. The judge is a covered decision maker, so the contact falls within "such a person" without any stretching.
2. Pending matter. The trial is under way, the jury is seated, and no verdict has been returned. The case is open and stays open until final disposition.
3. Communication. A spoken report in chambers is a communication, and its subject, the fitness of a sitting juror to decide this very case, goes to the heart of the pending matter.
4. Absent opponent. The prosecutor was neither present nor told. That absence is what makes the contact ex parte.
5. Authorization. This element asks whether a statute, a procedural rule, or a court order permits the contact. Nothing here does, and a lawyer's sense of urgency is not on that list.

Every element is present, so Defense Lawyer has violated Rule 3.5(b).

The facts invite sympathy, and the invitation has no place in the analysis. The juror's undisclosed tie may be a serious problem, Defense Lawyer's anger may be justified, and his report was accurate. The rule's text measures what happened in the conversation, and it contains no exception for a concern that turns out to be right. The reason lies in what the private report does. It delivers a one-sided account, and the prosecutor is the person best placed to answer it. The prosecutor may know that the juror disclosed the acquaintance, that the tie is distant, or that the overheard remark meant something other than it seemed to mean. In chambers no one can supply those answers, and a judge who acts on the report, perhaps by questioning or removing the juror, has acted on one side's version of events. The injury is the lost chance to answer. It occurs whether the report is accurate or inaccurate, so accuracy cannot cure it. Good faith fails for the same reason, even when the lawyer is probably right on the substance.

The proper course reaches the same judge with the same information while keeping the decision maker in front of both sides.

The two scenes share the same concern, the same kind of judge, and the same goal of putting the juror problem before the court. Only the order of the steps changed. In the second scene the opponent hears the concern first and is in the room when the judge hears it. That order costs the lawyer nothing she was entitled to keep. The judge learns of the problem at once, and the prosecutor may even agree that it deserves attention. The only thing surrendered is secrecy. If the prosecutor refuses to join the approach, the lawyer still has routes that keep him present, such as a request made in open court or a motion filed and served on him. Contact with the juror personally raises separate questions under the rules on jurors, which the next section takes up.

On an exam, a stem that stresses the lawyer's anger, the juror's concealment, and the probable accuracy of the complaint is testing whether those details displace the elements. They do not. Run the five questions, find all five, and state the violation. Then name the safe course: the lawyer goes to the other side first and approaches the judge with the opponent present.