Rule 3.5. Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 3.5 (2002).

Paragraph (b): Contact During the Proceeding

In 2002, the ABA modified the corresponding Model Rule to address communications “during the proceeding” and to address post-proceeding communication with jurors in a new paragraph (c). In addition, the ABA added the reference to “court order” to alert lawyers as to the availability of judicial relief in the rare situation in which an ex parte communication is needed. See ABA Ethics 2000 Commission Revision Notes to Model Rule 3.5 (2002).

Paragraph (c): Contact With Jurors After the Proceeding

In 2002, the ABA adopted this paragraph on recommendation of the ABA Ethics 2000 Commission. It did so because the Commission noted that former Rule 3.5(b) was held to be unconstitutionally overbroad when applied to post-verdict communications with jurors. See Rapp v. Disciplinary Bd., 916 F. Supp. 1525 (D. Hawaii 1996). The Commission proposed the addition of a new paragraph (c) to permit such communications unless prohibited by law or court order or unless the lawyer knows that the juror does not wish to be contacted. Also prohibited by this rule are communications involving misrepresentation, duress, coercion or harassment. In the view of the Ethics 2000 Commission, the newly-revised Model Rule permits more post-verdict communication with jurors than the prior Rule, but affords greater juror protection than did ABA Model Code of Professional Responsibility DR 7-108(D), which stated, “After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.” See ABA Ethics 2000 Commission Revision Notes to Model Rule 3.5 (2002).

Comments to ABA Model Rule 3.5

[1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.

[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order.

[3] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.

[4] The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. 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. An advocate 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.

[5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 1.0(m).

Annotations

Improperly Influencing a Judge

Paragraph (a) prohibits a lawyer from seeking to influence a judge “by means prohibited by law.” See La. Rules of Prof’l Conduct R. 3.5(a) (2004); see also Restatement (Third) of the Law Governing Lawyers § 113(1) (2000). Thus, a lawyer may not provide a gift or loan to a judge in an effort to affect the outcome of matters that are or may come before the judge. See Restatement (Third) of the Law Governing Lawyers § 113(2) (2000). Indeed, Louisiana judges are prohibited from accepting from lawyers or others, “any gifts or favors which might reasonably appear as designed to affect the judgment of the judge or influence the judge’s official conduct.” La. Code of Jud. Cond. 6(B)(2). Nevertheless, a lawyer can permissibly provide a judge a gift or favor that constitutes nothing more than ordinary social hospitality. Finally, a lawyer should not “state or imply an ability . . . to influence a judicial officer,” other than by “legally proper procedures.” Restatement (Third) of the Law Governing Lawyers § 113(2) (2000).

Louisiana trial and appellate judges in Louisiana are, of course, elected in general elections. As a result, persons seeking election or reelection to judicial office must run and finance campaigns. A judge or judicial candidate is prohibited from soliciting or accepting campaign contributions directly from any person, including a lawyer. See La. Code of Jud. Cond. 7(D)(1). As a result, lawyers are prohibited from giving a campaign contribution directly to a judge or judicial candidate. See Louisiana State Bar Ass’ n v. Harrington, 585 So. 2d 514 (La. 1990) (holding that “means prohibited by law” includes any attempt by a lawyer to induce a violation of the Code of Judicial Conduct); La. Rules of Prof’l Conduct R. 8.4(f) (2004) (making of professional misconduct to assist judge in violating rules of judicial conduct). However, a judge or judicial candidate is permitted to establish a campaign committee to solicit and accept campaign contributions from lawyers. See La. Code of Jud. Cond. 7(D)(3) (“Such committees are not prohibited from soliciting or accepting campaign contributions or public support from lawyers.”). Therefore, lawyers are free to contribute campaign contributions to judicial campaign committees.

Improperly Influencing a Juror or Potential Juror

Paragraph (a) prohibits a lawyer from seeking to influence a juror or prospective juror “by means prohibited by law.” La. Rules of Prof’l Conduct R. 3.5(a) (2004); see also Restatement (Third) of the Law Governing Lawyers § 115 (2000). In addition, paragraph (b) prohibits a lawyer from communicating ex parte with a juror or a judge during a trial about any matter.

However, the extent to which a lawyer can contact prospective jurors in anticipation of trial, or former jurors after verdict, is less clear. Paragraph (c) broadens the scope of permissible contact with jurors after discharge. Moreover, neither the Louisiana Code of Civil Procedure nor the Louisiana Code of Criminal Procedure prohibits communications with prospective or former jurors. See Jones v. Swift Transp. Co. Inc., 464 F. App’x. 252, 254 (5th Cir. 2012) (finding no 3.5(c) violation for lawyer communicating to discharged jury foreperson about verdict when the district court directed the jury foreperson to the lawyer). However, any attempt to prejudice or influence a prospective juror about a future case, or any effort to harass a former juror about a past case would violate this rule and, perhaps, others (including Rule 8.4(d)). Note also that several Louisiana state and federal courts have, by local rule, restricted the extent to which lawyers can communicate with past or prospective jurors. See, e.g., 3rd J.D.C. Local Rule 29; 13th J.D.C. Local Rule VII; 31st J.D.C. Local Rule XVII; Unif. Fed. Local Rule 47. Running afoul of any such a local rule would violate Louisiana Rule of Professional Conduct 3.4(c) (“A lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal . . . .”). In short, the best practice is for lawyers to avoid all contact with prospective jurors without prior court authorization, see Restatement (Third) of the Law Governing Lawyers § 115(1) (2000) (prohibiting a lawyer from communicating with prospective juror “except as allowed by law”), and to approach former jurors cautiously, id. § 115(3)(a) (prohibiting lawyer from communicating with former juror if doing so constitutes harassment).

Ex Parte Communications With Judges and Jurors During a Proceeding

Paragraph (b) prohibits a lawyer from communicating ex parte with a judge, juror or prospective juror “except as permitted by law.” See La. Rules of Prof’l Conduct R. 3.5(b) (2004); Restatement (Third) of the Law Governing Lawyers § 113(1) (2000). This paragraph prohibits lawyers from making any statements to the jury venire outside of the presence of the judge and opposing counsel. See Louisiana v. Washington, 626 So. 2d 841, 842-43 (La. Ct. App. 2d Cir. 1993).

This rule applies to lawyers who are not even counsel of record in the matter pending before the contacted judge or juror. See La. State Bar Ass’n v. Harrington, 585 So. 2d 514, 522 (La. 1990) (“[A] lawyer need not represent a party to a case to be subject to the Rule 3.5(b) proscription.”) (internal quotation omitted).

A 3.5(b) violation may also occur when a lawyer communicates with a judge ex parte through an agent. See In re Beck, 109 So. 3d 897, 906 (La. 2013) . In In re Beck, the Louisiana Supreme Court found a 3.5(b) violation when a lawyer requested an explanation for a ruling regarding lawyer’s case through the judge’s golfing partner and did not discourage the agent from further ex parte communications involving the case. Id.

Disruptive Conduct

Paragraph (d) prohibits a lawyer from engaging in conduct intended to disrupt a tribunal. See La. Rules of Prof’l Conduct R. 3.5(c) (2004). This rule prohibits lawyers from cursing or otherwise expressing disrespect for the court, opposing counsel or the judicial process. See In re Ruth, 90 So. 3d 1004, 1012-1015 (La. 2012) (finding 3.5(d) violation for lawyer’s delay and subsequent failure to appear for new trial date); In re Collins, 941 So. 2d 19 (La. 2006) (imposing discipline for making an “obscene gesture” in response to an adverse ruling); In re Bilbe, 841 So. 2d 729, 739 (La. 2003) (“Respondent’s conduct during that hearing was grossly inappropriate and would not have been tolerated by any judge in any courtroom.”). In addition to violating this rule, such conduct is unprofessional. See In re Mclanahan, 26 So. 3d 756, 765 (La. 2010) (lawyer agreed that failure to appear for trial due to the lawyer’s substance abuse constituted 3.5 violation).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s attempt to influence a judge, juror, prospective juror or other official by means prohibited by law: disbarment, when a lawyer intentionally tampers with a witness, or makes an improper ex parte communication with a judge or juror or other person in the legal system with intent to affect the outcome of the proceeding, and causes significant or potentially significant interference with the outcome of the legal proceeding; suspension, when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding; reprimand, when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference with or potential interference with the outcome of a legal proceeding; and, admonition, when a lawyer engages in an isolated instance of negligence in improperly communicating with an individual in the legal system, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with the outcome of the legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.3 (1992) (Improper Communications With Individuals in the Legal System); id. stds. 6.31-6.34.

Notes

This page was updated on August 5, 2013.