Related Rules Compared

Related Rules Compared

The ex parte prohibition in Rule 3.5(b) takes a single sentence: a lawyer may not “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.”¹ Exam writers rarely leave that sentence alone. They have a lawyer telephone someone connected with a case and say something improper, and the facts seem to fit three rules at once. Each rule asks its own question, and sorting them comes down to asking the right questions in the right order.

The first question is who received the contact. Rule 3.5(b) protects decision makers: the judge, juror, prospective juror, or other official named in the neighboring ban on improper influence.² A person who has hired a lawyer belongs to a different rule with a different purpose. The second question is what the rule requires of the lawyer. Rule 3.5(b) is complete when the lawyer communicates privately with the decision maker, because its text sets no condition about the lawyer’s purpose or means.³ Other rules turn on the means the lawyer uses or the effect the lawyer intends, so one set of facts can fall outside Rule 3.5(b) and inside another rule.

This unit moves outward from the decision maker. Improper influence comes first, because it sits in the same rule as the ex parte ban and is the one students most often mistake for it. Disruption of a tribunal follows, and the no-contact rule for represented persons comes last. When one fact pattern satisfies more than one rule, run each rule on its own terms.

Improper Influence

Rule 3.5(a) forbids a lawyer to “seek to influence a judge, juror, prospective juror or other official by means prohibited by law.”⁴ It protects the same decision makers as the ex parte ban, which is why students fold the two rules into one.⁵ They are separate prohibitions. Rule 3.5(b) asks whether the opposing side was shut out of the contact; Rule 3.5(a) asks what means the lawyer used to move the decision maker. The answer to one question says nothing about the other.

The text of Rule 3.5(a) has two operative parts. The verb “seek” describes an effort, not a result, so a lawyer who offers a bribe that the judge refuses has still sought to influence, and the rule does not wait to learn whether the ruling changed. The phrase “by means prohibited by law” supplies the limit. The rule lists no forbidden means of its own and borrows them from other law, with bribery of a judge or juror as the plainest example. Ordinary argument on the facts and the law is an effort to influence, but no law prohibits it, so the rule leaves it alone. A rule against every effort to influence a decision maker would forbid the advocate’s whole job.

The rule focuses on means because decision makers are supposed to rule on the evidence and the law. A forbidden means such as bribery replaces the merits with something else, namely the value of the payment or the favor, and that replacement happens whether or not the other side is in the room. Opposing counsel can answer an argument, but no one can answer a gift, which hands the judge an unstated reason to rule. The two rules therefore guard different things: Rule 3.5(b) guards the opponent’s chance to be heard, and Rule 3.5(a) guards the basis on which the decision rests.

The two halves of that scene hold the lawyer, the judge, and the motion constant, so the fact that moved the answer is the means used. The rules also overlap only in part. Rule 3.5(a) is broader than the ex parte rule because it requires neither secrecy nor an absent opponent, and it is narrower because it reaches only forbidden means. Crossing those two variables yields four combinations:

• Lawful argument made privately, with the opponent absent and no authorization, violates Rule 3.5(b) only, because the means are lawful but the opponent was shut out.
• A bribe offered openly, with the opponent present, violates Rule 3.5(a) only, because the means are forbidden but the contact is not ex parte.
• A bribe offered privately violates both rules, because the means are forbidden and the opponent is shut out.
• Lawful argument made in open court with the opponent present violates neither rule.

The authorization clause shows the same independence. Rule 3.5(b) lifts its bar when law or a court order authorizes the contact, but the text of Rule 3.5(a) contains no comparable clause.⁶ Suppose a court order lets a lawyer appear before a judge without the opponent on an emergency application. The appearance is permitted, yet an offer of a gift during it is still an attempt to influence by a prohibited means. Exam stems exploit the overlap in both directions. A stem in which the opponent hears a bribe invites the answer that nothing was ex parte and so nothing was violated, which overlooks Rule 3.5(a). A stem in which a lawyer privately and politely argues a pending motion invites a charge of improper influence, when the violation is Rule 3.5(b), because the argument itself used lawful means.

Disrupting a Tribunal

Rule 3.5(d) forbids a lawyer to “engage in conduct intended to disrupt a tribunal.”⁸ It joins other restrictions that bind an advocate inside the courtroom: no alluding to irrelevant or inadmissible matters, no asserting personal knowledge or opinion, and no ex parte communication with the judge or jurors.⁹ That proximity is why exam stems blur the disruption rule with the ex parte rule. The two ask different questions. The ex parte rule asks who was absent from a contact with the decision maker, and the disruption rule asks whether the lawyer set out to disorder the proceeding.

A tribunal can decide a case only if the proceeding stays orderly enough for evidence to be given and heard. Intentional disruption attacks that precondition directly. A witness who is shouted at may be unable to answer coherently, the record fills with noise in place of testimony, the time that belongs to both parties is used up, and the decision maker forms a distorted picture of the evidence. The harm falls on the process of deciding, whereas the ex parte ban addresses the absent party’s lost chance to answer.

The rule has two working parts. The conduct part, disruption, names the injury to the proceeding. The intent part, “intended to,” limits the rule’s reach, and the limit is needed because ordinary advocacy disturbs a proceeding all the time. An objection halts an answer, and a hard cross-examination unsettles a witness. A defense lawyer may even cross-examine a truthful prosecution witness with the goal of undermining credibility.¹⁰ If every disruptive effect counted, routine adversarial work would be a violation, so the rule asks about purpose. It separates the lawyer whose vigorous work happens to rattle a witness from the lawyer who set out to derail the proceeding, and its text asks about intent, not outcome. The ex parte rule runs the other way: its text contains no purpose language, while Rule 3.5(d) writes purpose into the prohibition.¹¹

Both lawyers in that scene pressed a witness, and what separates them is purpose and manner. Firm, forceful advocacy is permitted; abuse aimed at derailing the testimony is not. Because the rule asks about disorder and intent, it applies whether or not the opposing side is present, and that marks its edge against Rule 3.5(b).

On an exam, ask who was absent when the stem describes private contact, and ask whether the lawyer aimed at disorder when the stem describes courtroom misbehavior. The usual mistake is to reach for the ex parte rule because a lawyer behaved badly in front of a judge, even though the opponent was in the room throughout.

The No-Contact Rule

Rule 3.5(b) protects decision makers, and a separate provision, Rule 4.2, protects someone else: a person who has a lawyer of his or her own. Rule 4.2 provides that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”¹³ Writers call it the “no-contact” rule, and some call it the ex parte contact rule or the anti-contact rule.¹⁴ The shared label tempts students to treat it as a variant of Rule 3.5(b).

The label is loose. In this chapter, ex parte has meant contact with a decision maker while the opposing side is absent, and Rule 3.5(b) guards the integrity of the proceeding and the absent party’s chance to respond. Rule 4.2 guards a different relationship, the one between a represented person and that person’s lawyer. It keeps one lawyer from interfering with another lawyer’s relationship with a client, guards against inadvertent or uncounseled disclosure of confidential information by a layperson whose lawyer is not present, and bars a lawyer from obtaining a statement from a represented party that would amount to an admission.¹⁵ From the client’s side, one benefit of hiring a lawyer is that others must deal through that lawyer.¹⁶ The rule shields the represented person from “the supposed imbalance of legal skill and acumen between the lawyer and the party litigant.”¹⁷ Because the two rules protect different people, the same facts can raise one and leave the other untouched.

A violation of Rule 4.2 requires four elements, and all four must be present:

1. The communication occurs while the lawyer is representing a client.
2. The communication concerns the subject of the representation.
3. The lawyer knows that the person contacted is represented by another lawyer in the matter.
4. The other lawyer has not consented, and no law or court order authorizes the communication.¹⁸

The rule speaks of persons, not parties, so it reaches contact made before any lawsuit is filed. It is not confined to litigation at all, and it applies equally to represented parties to a deal, whether or not their interests are adverse.¹⁹ Consent has one feature worth fixing in mind. Only the represented person’s lawyer can give it, so the represented person’s own willingness is irrelevant, and under Comment 3 the rule applies even when the represented person initiates or consents to the communication.²⁰ The rule’s protective purpose can be achieved only if the represented person’s lawyer is the sole source of consent. Rule 3.5(b) has no consent clause at all, since its text names only law and court order as authorization.²¹

The two calls share a lawyer, a dispute, and an absent opposing lawyer, and the fact that sorts them is the identity of the person who answered. A stem that refers to an ex parte contact rule should therefore be read past the label by asking who was contacted. A judge, juror, prospective juror, or other official who decides the matter brings in Rule 3.5(b), and the question becomes whether law or a court order authorized the contact. A represented person who decides nothing brings in Rule 4.2, and the question becomes whether the other lawyer consented. Who started the conversation, and how friendly it was, leaves that sorting unchanged.

The four rules, side by side, show how differently each is built.²³

Rule	Protects	What the lawyer must do	Exception in the text
3.5(a), improper influence	Judge, juror, prospective juror, other official	Seek to influence by means prohibited by law	None stated
3.5(b), ex parte contact	The same decision makers	Communicate ex parte during the proceeding	Law or court order
3.5(d), disruption	The tribunal	Engage in conduct intended to disrupt	None stated
4.2, no-contact	A person known to be represented in the matter	Communicate about the subject of the representation	Other lawyer’s consent, law, or court order