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Rule 3.5. Impartiality and Decorum of the Tribunal.

A lawyer shall not:

(a) seekto influence a judge, juror, prospective juror or other official by meansprohibited by law; or

(b) communicate ex parte in an adversary proceedingas to the merits of the case with a judge, juror, prospective juror or courtofficial during the proceeding, prior to full discharge of that person?s dutiesin the proceeding, unless authorized to do so by law, rule or court order;

(c) communicatewith a juror or prospective juror after discharge of the jury if:

(c)(1)the communication is prohibited bylaw, rule or court order;

(c)(2) the juror has made known to thelawyer a desire not to communicate; or

(c)(3) the communication involvesmisrepresentation, coercion, duress or harassment; or

(d) engagein conduct intended to disrupt a tribunal.

Comment

[1] Many forms of improperinfluence upon a tribunal are proscribed by criminal law. Others are specifiedin the Utah Code of Judicial Conduct, with which an advocate should befamiliar. A lawyer is required to avoid contributing to a violation of suchprovisions.

[2] During a proceeding a lawyermay 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, rule orcourt order.

[2a] Paragraph (b) of Utah Rule3.5 differs from the ABA Model Rule by inclusion of the qualifying phrases"in an adversary proceeding," "as to the merits" and"prior to full discharge of that person?s duties in the proceeding."In the interest of fairness and impartiality, these additional qualificationsgive the practitioner more guidance and more clearly define the types of ex parte communications that areprohibited. Consistent with treatment elsewhere in these Rules, the exceptionsstated in paragraphs (b) and (c)(1) of the Utah Rulealso include "by rule" where the ABA Model Rule does not.

[3] A lawyer may on occasion wantto communicate with a juror or prospective juror after the jury has beendischarged. The lawyer may do so unless the communication is prohibited by law,rule or a court order but must respect the desire of the juror not to talk withthe lawyer. The lawyer may not engage in improper conduct during thecommunication.

[4] The advocate?s function is topresent evidence and argument so that the cause may be decided according tolaw. Refraining from abusive or obstreperous conduct is a corollary of theadvocate?s right to speak on behalf of litigants. A lawyer may stand firmagainst abuse by a judge but should avoid reciprocation; the judge?s default isno justification for similar dereliction by an advocate. An advocate canpresent the cause, protect the record for subsequent review and preserveprofessional integrity by patient firmness no less effectively than bybelligerence or theatrics.

[5] The duty to refrain fromdisruptive conduct applies to any proceedings of a tribunal, including adeposition. See Rule 1.0(o).

 

Effective November 1, 2017