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LOCATION: 555 Capitol Mall, Suite 1230, Sacramento, CA 95814
PHONE: (916) 996-0400 | FAX: (916) 668-5760

Following is the 77th post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3 – “Advocate,” focusing on contact that attorneys may have with judges, officials, tribunal employees, and jurors.

This Rule of Professional Conduct, as revised, is as follows:

Rule 3.5   Contact with Judges, Officials, Employees, and Jurors

(a)  Except as permitted by statute, an applicable code of judicial ethics or code of judicial conduct, or standards governing employees of a tribunal, a lawyer shall not directly or indirectly give or lend anything of value to a judge, official, or employee of a tribunal. This rule does not prohibit a lawyer from contributing to the campaign fund of a judge or judicial officer running for election or confirmation pursuant to applicable law pertaining to such contributions.

(b)  Unless permitted to do so by law, an applicable code of judicial ethics or code of judicial conduct, a rule or ruling of a tribunal, or court order, a lawyer shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before the judge or judicial officer, except:

(1)  in open court;

(2)  with the consent of all other counsel and any unrepresented parties in the matter;

(3)  in the presence of all other counsel and any unrepresented parties in the matter;

(4)  in writing with a copy thereof furnished to all other counsel and any unrepresented parties in the matter; or

(5)  in ex parte matters.

(c)  As used in this rule, “judge” and “judicial officer” shall also include: (i) administrative law judges; (ii) neutral arbitrators; (iii) State Bar Court judges; (iv) members of an administrative body acting in an adjudicative capacity; and (v) law clerks, research attorneys, or other court personnel who participate in the decision-making process, including referees, special masters, or other persons to whom a court refers one or more issues and whose decision or recommendation can be binding on the parties if approved by the court.

(d)  A lawyer connected with a case shall not communicate directly or indirectly with anyone the lawyer knows to be a member of the venire from which the jury will be selected for trial of that case.

(f)  During trial, a lawyer who is not connected with the case shall not communicate directly or indirectly concerning the matter with anyone the lawyer knows is a juror in the case.

(f)  During trial, a lawyer who is not connected with the case shall not communicate directly or indirectly concerning the case with anyone the lawyer knows is a juror in the case.

(g)  After discharge of the jury from further consideration of a case, a lawyer shall not communicate directly or indirectly with a juror 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, or duress or is intended to harass or embarrass the juror or influence the juror’s future jury service actions.

(h)  A lawyer shall not directly or indirectly conduct an out of court investigation of a person who is either a member of a venire or a juror in a manner likely to influence the state of mind of such person in connection with present or future jury service.

(i)  All restrictions imposed by this rule also apply to communications with, or investigations of, members of the family of a person who is either a member of a venire or a juror.

(j)  A lawyer shall reveal promptly to the court improper conduct by a person who is either a member of a venire or a juror or by another toward a person who is either a member of a venire or a juror or a member of his or her family, of which the lawyer has knowledge.

(k)  This rule does not prohibit a lawyer from communicating with persons who are members of a venire or jurors as a part of the official proceedings.

(l)  For purposes of this rule, “juror” means any empaneled, discharged, or excused juror.

Application:

This is the second post about Rule 3.5 of the CBA’s revised RPC. The first one (post 41) talked about how this rule replaces Rule 5-300 of the CBA’s previous version of the RPC, pertaining to “Contact with Officials.” But Rule 3.5, as set forth above, also replaces Rule 5-320 from the old RPC. The title of that rule was “Contact with Jurors.” Because of the narrow focus of the previous rule (dealing only with jurors, not with judges, officials, or tribunal employees), none of the content from the first three subdivisions in the previous rule is in the new one. But subds. (d) through (l) in the new rule match all nine subdivisions of Rule 5-320 in the previous RPC.

The only exception is that subd. (g) in the new rule (corresponding to subd. (D) in the old rule) lists two additional conditions to the prohibition against an attorney’s contact with jurors after being discharged from a trial. Now, in addition to the ban on communication intended to coerce, harass, or embarrass a juror, an attorney is also barred from contacting a juror if that communication has been prohibited by law or court order or if the juror has made known to the attorney a desire not to communicate with them.

As is the case with several other rules in the American Bar Association (ABA)’s Model RPC, Rule 3.5 is a streamlined version of the content found in the CBA’s revised rule. Titled “Impartiality & Decorum of the Tribunal,” ABA Rule 3.5 lists four basic prohibitions an attorney must heed when dealing with various parties connected to a trial, as outlined below:

A lawyer shall not:

(a)  seek to influence a judge, juror, prospective juror, or other officials 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.

Benefit:  The fact that this rule devotes most of its content to warnings about misconduct involving jurors (rather than judges or other officials) should serve as a valuable reminder to all attorneys in California regarding their behavior toward jurors.

The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at 916/996-0400 or at contact@parlawgroup.com. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)

Rules of professional conduct, California Bar Association, American Bar Association, legal malpractice, misrepresentation, judges, jurors, Parker Law Group, Port Parker

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