Contact with judges, officials, employees and jurors (Rule 3.5)

PROPOSED RULES OF PROFESSIONAL CONDUCT

Unlike its direct counterpart in the ABA Model Rules of Professional Conduct, new proposed Rule 3.5 of the California Rules of Professional Conduct contains more language spelling out the communications with others involved in the decision-making process that are prohibited for a lawyer connected with a case. Similarly, the proposed rule adds substantial language to the existing California rule counterpart, which is Rule 5-300, because it also incorporates the provisions relating to lawyers and jurors that are currently in Rule 5-320.

The existing language of Rule 5-300(A), (B) and (C) is carried forward with modest changes. Attorneys remain prohibited from giving or lending anything of value to a judge, official, or employee of a tribunal except as expressly permitted, which includes contributions to a campaign fund. The effect of the value of contributions to a campaign fund, and related, judicial disclosure obligations are beyond the scope of this note; however, those interested may review sections 170.1 and 170.3 of the Code of Civil Procedure and Canon 3E(2)(b) of the Code of Judicial Ethics. A “gift” under the Code of Judicial Ethics means anything of value to the extent that consideration of equal or greater value is not received, and includes a rebate or discount in the price of anything of value unless the rebate or discount is made in the regular course of business to members of the public without regard to official status.

Attorneys remain prohibited from communicating with or arguing to a judge upon the merits on a contested matter pending before him or her except in open court, with the consent of or in the presence of all other counsel and any unrepresented parties, in writing with a copy furnished to all other counsel and any unrepresented parties, or in ex parte matters. So for those attorneys whose opponents are known to be obsequious, one should seriously consider attending otherwise unopposed ex parte matters.

The definitions of “judge” and “judicial officer” have been explicitly expanded to include not simply law clerks, research attorneys, and other court personnel involved in the decision-making process, as Rule 5-300 previously has provided. The other court personnel now are specified to include referees, special masters, or others to whom a court refers issues for decision or recommendation. The new proposed rule also covers administrative law judges, neutral arbitrators, State Bar Court judges, and members of an administrative body acting in an administrative capacity as persons with whom an attorney may not communicate other than in the manner permitted by the rule. Concerning law clerks, research attorneys, and other court personnel, the Comment to the proposed new rule references the Code of Ethics for the Court Employees of California, which contains 12 tenets that such persons commit themselves to, including tenets that prevent improper disclosures to attorneys by safeguarding confidential information, preserving the integrity of electronically stored information, and avoiding the appearance of impropriety.

The Commission for the Revision of Rules of Professional Conduct decided to take the juror-related rules in existing Rule 5-320 and incorporate them into new proposed Rule 3.5. There are therefore multiple subsections in Rule 3.5 regarding a lawyer’s communications with potential and actual jurors in a case They include the subsections that by implication address the use of social media. Jurors are defined to include those empaneled, discharged, or excused. Proposed subsections (h) and (i) prohibit the use of an out of court investigation of jurors in a manner likely to influence the state of mind of such a person in connection with “present or future” jury service, and extend the restrictions of the proposed rule to members of the family of a person who is either a member of a venire or a juror. Investigation techniques that involve friending family members or linking in with them may violate such rules, now and continuing into the future if the rule is approved by the Supreme Court and becomes effective.

More common rules relating to a lawyer’s relationship to potential and actual jurors are found here as well. Those include not communicating directly or indirectly with a member of the venire from which the jury will be selected for trial of the lawyer’s case, or during trial with anyone the lawyer knows to be a juror. The latter prohibition also applies during trial to a lawyer who is not connected with a case: He or she may not communicate directly or indirectly concerning the case with anyone the lawyer knows is a juror. Small talk is the rule for the uninvolved lawyer passing time in the courthouse.

After discharge of the jury, communications with jurors are not permitted if prohibited by law or court order, if a juror has made known a desire not to communicate, or by any misrepresentation, coercion, or duress, or if intended to harass or embarrass a juror or to influence a juror’s actions in future jury service.

Finally, new subsection (j), which is existing Rule 5-320 (G), requires a lawyer to promptly tell the court about improper conduct by a proposed or actual juror, or improper conduct by third persons toward a proposed or actual juror or a member of his or her family. This subsection applies to lawyers whether or not they are connected with the case to which the conduct relates.

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

(a) Except as permitted by statute an applicable code of judicial ethics, 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 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; or

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

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

(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.

Comment

[1] An applicable code of judicial ethics or code of judicial conduct under this rule includes the California Code of Judicial Ethics and the Code of Conduct for United States Judges. Regarding employees of a tribunal* not subject to judicial ethics or conduct codes, applicable standards include the Code of Ethics for the Court Employees of California and 5 United States Code section 7353 (Gifts to Federal employees).

[2] For guidance on permissible communications with a juror in a criminal action after discharge of the jury, see Code of Civil Procedure section 206.

[3] It is improper for a lawyer to communicate with a juror who has been removed, discharged, or excused from an empaneled jury, regardless of whether notice is given to other counsel, until such time as the entire jury has been discharged from further service or unless the communication is part of the official proceedings of the case.