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Rule 3.5. Impartialityand Decorum of the Tribunal.

A lawyer shall not:

(a) Seek to influence a judge, juror, prospective juror or otherofficial by means prohibited by law; or

(b) Communicate exparte in an adversaryproceeding as to the merits of the case with a judge, juror, prospective juroror court official during the proceeding, prior to full discharge of thatperson?s duties in the proceeding, unless authorized to do so by law, rule orcourt order;

(c) communicate with a juror orprospective juror after discharge of the jury if:

(c)(1) thecommunication is prohibited by law, rule or court order;

(c)(2) thejuror has made known to the lawyer a desire not to communicate; or

(c)(3) thecommunication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupta tribunal.

Comment

[1] Many forms of improper influence upon a tribunal areproscribed by criminal law. Others are specified in the Utah Code of JudicialConduct, with which an advocate should be familiar. A lawyer is required toavoid contributing to a violation of such provisions.

[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an officialcapacity in the proceeding, such as judges, masters or jurors, unless authorizedto do so by law, rule or court order.

[2a] Paragraph (b) of Utah Rule 3.5 differs from the ABA ModelRule by inclusion of the qualifying phrases "in an adversaryproceeding," "as to the merits" and "prior to fulldischarge of that person?s duties in the proceeding." In the interest offairness and impartiality, these additional qualifications give thepractitioner more guidance and more clearly define the types of ex parte communications that are prohibited.Consistent with treatment elsewhere in these Rules, the exceptions stated inparagraphs (b) and (c)(1) of the Utah Rule alsoinclude "by rule" where the ABA Model Rule does not.

[3] A lawyer may on occasion want to communicate with a juror orprospective juror after the jury has been discharged. The lawyer may do sounless the communication is prohibited by law, rule or a court order but mustrespect the desire of the juror not to talk with the lawyer. The lawyer may notengage in improper conduct during the communication.

[4] The advocate?s function is to present evidence and argument sothat the cause may be decided according to law. Refraining from abusive orobstreperous conduct is a corollary of the advocate?s right to speak on behalfof litigants. A lawyer may stand firm against abuse by a judge but should avoidreciprocation; the judge?s default is no justification for similar derelictionby an advocate. An advocate can present the cause, protect the record forsubsequent review and preserve professional integrity by patient firmness noless effectively than by belligerence or theatrics.

[5] The duty to refrain from disruptive conduct applies to anyproceedings of a tribunal, including a deposition. See Rule 1.0(q).

 

 

Effective May 1, 2019