D.C. R. Prof'l. Cond. 3.5

As amended through October 11, 2024

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, EITHER EX PARTE OR WITH OPPOSING COUNSEL, 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 OR PROSPECTIVE 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 ANY PROCEEDING OF A TRIBUNAL, INCLUDING A DEPOSITION.

D.C. R. Prof'l. Cond. 3.5

COMMENT

[1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the 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, even though the proceeding has not ended. The lawyer may do so, either ex parte or with opposing counsel, unless the communication is prohibited by law or a court order. The lawyer, however, must respect the desire of the juror or prospective 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.