Following is the 41st post in a series from Parker Taylor 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 with judges, officials, employees, and jurors. The 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 a 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.
(e) During trial, a lawyer connected with the case shall not communicate directly or indirectly with any juror.
(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 to influence the juror’s actions in future jury service.
(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:
One difference between Rule 3.5 of the CBA’s revised RPC, as set forth above, and Rule 5-300 (Contact with Officials) in the previous RPC is a phrase that used to follow the prohibition of a lawyer giving or lending anything of value to a judge, official, or employee of a tribunal. That phrase mentioned an exception to the ban by adding: “unless the personal or family relationship between the member and the judge, official, or employee is such that gifts are customarily given and exchanged.” Another difference is that subdivision (a) now begins with a phrase describing three exceptions to the prohibition mentioned in this subdivision. The exceptions deal with permissions given by statute, code, or standards. This same addition is at the beginning of subdivision (b).
The only other part of the revised rule that is identical to the previous RPC’s rule is 3.5(c)(v), which includes a list of people who fall under the category of “judge” and “official officer.” Rule 5-300(C) of the previous rule lists those individuals as “law clerks, research attorneys, or other court personnel who participate in the decision-making process.” Sub-subdivisions (i) through (iv) and the last half of sub-subdivision (v) are new. Subdivisions (d) through (l) are also new.
As with several other corresponding rules in the American Bar Association (ABA)’s RPC, Rule 3.5 (Impartiality and Decorum of the Tribunal) is far more streamlined than CBA’s version of the same rule. Instead of 12 subdivisions (as in the CBA’s rule), the ABA’s rule has only four. ABA’s Rule 3.5(a) summarizes the content found in CBA’s lengthy subdivision (a) in one sentence: “A lawyer shall not (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law.”
Subdivision (b) of ABA’s rule, prohibiting a lawyer from communicating ex parte with the same type of individuals mentioned in (a), says virtually the same thing as Rule 3.5(e) of CBA’s new rule, although the CBA rule only mentions the prohibition as applying to jurors. ABA Rule 3.5(c) is nearly identical to CBA Rule 3.5(g)(1)-(3). Subdivision (d) of ABA’s rule – “engage in conduct intended to disrupt a tribunal” – doesn’t match any portion of CBA’s rule … except for possibly subdivision (h), which refers to out-of-court investigations of a juror.
Benefit: Generally speaking, the warnings in this rule regarding unlawful communication between attorneys and certain others during legal proceedings can help protect those attorneys against potential sanctions … which, in turn, benefits the clients they represent __ [HOW?]____
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