Rule 3.5 Impartiality and Decorum of the Tribunal

COMMENT

[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. In particular, in the absence of opposing counsel, a lawyer shall not directly or indirectly communicate with or argue before a judge or tribunal upon the merits of a contested matter pending before such judge or tribunal, except in open court; nor shall the lawyer, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or tribunal concerning the merits of a contested matter pending before such judge or tribunal. Subparagraph (b) does not preclude communications permitted by rule of court. For purposes of subparagraph (b), the term “opposing counsel” includes a party who has no counsel.

[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 (as it is with federal jurors in Maine) 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. At no time shall a lawyer connected with a trial of a case, communicate extra judicially, directly or indirectly, with a juror or anyone the lawyer knows to be a member of the pool from which the jury will be selected, or with any member of such person’s family.

[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).

REPORTER’S NOTES:

Model Rule 3.5 (2002) is generally in accord with existing Maine law, but is somewhat less specific than the analogous Maine Bar Rules. The corresponding Maine Bar Rules are M. Bar R. 3.7(e)(2)(vi), 3.7(h)(1) and 3.7(h)(2). Because the Task Force thought it was a good idea to offer more explicit guidance on the issue of a lawyer’s obligation to be impartial and his or her responsibility to exercise decorum in the context of appearing before a tribunal, it recommended adoption of Model Rule 3.5 (2002) and its corresponding Comments, as revised to reflect existing Maine law and practice.

The Task Force wanted to draw attention to a clear distinction between state and federal law with respect to the issue of communication with a juror or prospective juror, following such juror’s discharge from the jury. While post-discharge communication is allowed under state law, it is prohibited in Maine under federal law.