Litigation & Advocacy · 10-16% of the exam
14.2.1Improper influence and ex parte contact with judges (Rule 3.5(a)–(b))
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- Rule 3.5(a), (b), (d) — Improper influence, ex parte contact, and disruptive conduct
Rule 3.5(a)–(b) prohibits improper influence on adjudicators and unauthorized one-sided contact with the court. Whether a communication is ex parte turns on whether the other parties had notice and a chance to be heard, not solely on substance. The rule states a prohibition and supplies no cure for a communication already made.
Why
A ruling is worth only as much as the neutrality behind it. If one side could reach the judge privately, or lean on the judge by means the law forbids, the other side would be answering arguments it did not hear. Decorum belongs with them: a proceeding that can be derailed at will decides nothing.
Plain English
Don't seek to influence a judge, juror, prospective juror, or other official by means prohibited by law. Don't communicate ex parte with a judge or official during a proceeding unless law or court order authorizes it — the adversary's consent doesn't. A letter is permissible only with simultaneous service on opposing counsel — settled practice, since Rule 3.5 defines ex parte nowhere; an oral communication about the merits requires adequate prior notice. Re-sending one with that service fixes the service defect going forward; Rule 3.5(b) supplies no cure for the contact already made.
Don't engage in conduct intended to disrupt a tribunal — a duty that applies to any proceeding of a tribunal, including a deposition.
No gifts to court personnel, though ordinary social hospitality is excepted. Neither Rule 3.5 nor Rule 8.2 contains that gift rule: the lawyer-side source is Rule 8.4(f) — knowingly assisting a judge or judicial officer in conduct that violates the rules of judicial conduct or other law — and the judge-side rule is CJC Rule 3.13, taught in Chapter 24.
Rule
Rule 3.5(a), (b), (d) — Improper influence, ex parte contact, and disruptive conduct
Improper influence (3.5(a)):
A lawyer shall not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.
Ex parte contact with judges and officials (3.5(b)):
A lawyer shall not communicate ex parte with a judge or other official during a proceeding, unless authorized by law or court order.
Rule 3.5 and its comments define "ex parte" nowhere. The working definition here, and the two lines under it, are settled practice: a contact is ex parte when it reaches the judge or official without notice to the other parties, leaving them no chance to be heard on it. The adversary's consent is NOT authorization — Rule 3.5(b) permits ex parte contact only where authorized by law or court order.
Worked example. A letter to the judge falls outside the ex parte category when opposing counsel receives a contemporaneous copy. An oral communication about the merits requires adequate prior notice to the opposing party; oral discussion of the merits without such notice is prohibited.
Compare to Rule 3.3(d): Rule 3.5(b) prohibits unauthorized ex parte contact; Rule 3.3(d) governs the affirmative disclosure duty in a lawfully authorized ex parte proceeding such as a temporary restraining order (TRO) hearing.
Disruptive conduct (3.5(d)):
A lawyer shall not engage in conduct intended to disrupt a tribunal. Vigorous advocacy within the tribunal's rules is protected; conduct calculated to obstruct or interfere with a proceeding is not.
Comment [5]: the duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition — no judge need be in the room.
Trap
Example 1
Ex. 1
On a Friday afternoon, a lawyer faxes chambers a continuance request without copying opposing counsel. She realizes the error, resends the identical fax to chambers, and simultaneously emails a copy to opposing counsel. Later that evening, she posts on social media that the presiding judge "accepted a bribe from the other side." Her only basis is a vague suspicion. The first fax was impermissible ex parte contact, and Rule 3.5(b) supplies no cure: it prohibits the communication and says nothing about undoing one already made. The resend fixes the defect going forward — simultaneous service gives opposing counsel notice, so the second communication is permissible correspondence — but the completed contact stays a violation. The content of the letter is secondary; simultaneous service is what controls. The social media post violates Rule 8.2. Publicly accusing a sitting judge of bribery without any supporting evidence is a statement about the judge's integrity made with reckless disregard for the truth. Framing it as personal belief rather than established fact doesn't save it. Separate the two failures: the resend cured the service defect going forward, not the first fax. It does nothing for the post, where the defect was the accusation itself. Rule 8.2 and the officers it reaches are taught in Chapter 22.
Questions · 1
Q 01ch14-e09
Question 1 of 1 · Rule 3.5(b)
Attorney represented Defendant in a pending suit about a disputed easement across an orchard. A decision from the state's high court came down mid-week that helped Defendant's position on a motion then under advisement. Attorney mailed the trial judge a short letter describing the decision and emailed a copy to opposing counsel the same morning. That afternoon Attorney telephoned the judge's chambers and left a voicemail explaining why the new decision should change how the pending motion came out, and told no one on the other side about the call. No law or court order authorized either communication. Is Attorney subject to discipline?
Keys 1 to 4 choose.