Wyoming Bar Journal
2012.
Vol. 35, No. 1, 46.
Ethically Speaking
Wyoming LawyerIssue: February, 2012Ethically Speakingby John M. Burman Carl M. Williams Professor of Law and Ethics University of Wyoming College of LawLawyers' Duties to Tribunals: Part HI - Protecting the Integrity of the Legal System
This was originally slated to be a two-part series: "Meritorious Claims and Defenses"(fn1) and "Candor."(fn2) It has turned into three.(fn3) The reason is that there is an additional duty the duty to protect the integrity of the legal system, which is often over-looked. Since that obligation is contained in two different places in the Rules of Professional Conduct ("the Rules"), and since the failure to comply with that duty is misconduct(fn4) and may lead to sanctions, it is worthy of discussion. Finally, some other duties deserve mention, too.
The Ethical Framework
The Rules begin with a "Preamble." Its purpose is to provide "general orientation" to the Rules.(fn5) The Preamble begins with the admonition that " [a] lawyer [is] an officer of the legal system . . . ."(fn6) Further, "[a] lawyer should demonstrate respect for the legal system and for those who serve it ... . While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process."(fn7) In addition to the precatory(fn8) language of the Preamble, the Rules directly address lawyers' duties to the legal system.
Rule 3.5 is entitled "Impartiality and decorum of the tribunal? Not surprisingly, it directly addresses a lawyer's duties to the legal system. Paragraph (a) says that "[a] lawyer shall not . . . seek to influence a judge, juror, prospective juror or other official by means prohibited by law."(fn9)
Wyoming law directly prohibits certain attempts to improperly influence members of the legal system. First, it is "a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than five thousand dollars ($5,000.00), or both, if, by force or threats, [a person] attempts to influence, intimidate or impede a juror, witness or officer in the discharge of his duty."(fn10) Next, it is "a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if, by threats or force, [a person] obstructs or impedes the administration of justice in a court."(fn11)
As the statutory provisions mentioned above are "means prohibited by law," it is obviously unethical (a violation of Rule 3.5(a)), for a lawyer to engage in such activities, either directly or indirectly.(fn12) Any such activity might also be a violation of Rule 3.4(a), which says: "[a] lawyer shall not . . . unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act."(fn13)
The Rules also make it clear that the civil legal system and the criminal legal system are separate-and a Wyoming lawyer may not ethically use the criminal system to gain a benefit in the civil system. In language that was formerly part of the ABA's Model Code of Professional Responsibility, but which is not part of the Model Rules (or the rules in most states), the Wyoming Rules require a lawyer to keep the systems separate. "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."(fn14) (The omission of that language from the Model Rules means, according to the ABA, that it may be ethical to use the criminal system to gain an advantage for a client with a civil matter.(fn15))
Paragraph (b) of Rule 3.5 addresses, and severely limits, ex parte communications. "A lawyer shall not . . . communicate ex parte with an official acting in an adjudicative capacity concerning any substantive or procedural issue before him, or which is likely to be before him, unless authorized to do so by law or court order."(fn16) (The limitation is consistent with the restrictions on judges having ex parte contact with lawyers. "A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter . . . ."(fn17)). Further, as discussed in the last column, lawyers have special responsibilities to a tribunal when engaging in ex parte proceedings.(fn18) They must "inform the tribunal of all material facts known to the lawyer . . . ."(fn19)
A lawyer may communicate with a juror only under carefully controlled circumstances. "A lawyer shall not . . . communicate with a juror or prospective juror after discharge of the jury . . ."(fn20) if (1) the communication is "prohibited by law or court order;"(fn21) (2) the juror has made known to the lawyer a "desire" not to communicate;(fn22) or (3) the communication "involves misrepresentation, coercion, duress or harassment . . . ."(fn23)
The restrictions on communicating with jurors apply after a jury is dismissed, too. "The lawyer may [communicate with jurors] unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer."(fn24) (It is common for a judge to order lawyers not to contact jurors after a trial, but to allow jurors to contact lawyers.)
Lastly, Rule 3.5 says that a lawyer may not "engage in conduct intended to disrupt a tribunal."(fn25) (This admonition is similar to the statement that it is "professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice."(fn26)) This does not mean that a lawyer cannot and should not advocate for a client despite a tribunal's obvious disapproval. Rather, "[a] lawyer may stand firm against abuse by a judge .... 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."(fn27) The prohibition on engaging in conduct that "is intended to disrupt a tribunal," should be read together with the requirement that" [a] lawyer shall not. . . knowingly disobey an obligation under the rules of a tribunal . . . ."(fn28)The latter of these provisions incorporates all rules of a tribunal in the Rules. Doing so means that a lawyer better know and follow such rules, e.g., the Uniform Rules for District Court, which also apply in Circuit Courts,(fn29) adopt certain standards for decorum.(fn30) Violation of those standards can lead both to sanctions under the Rules(fn31) and sanctions imposed by the trial court under the Uniform Rules.(fn32)
As with the Rule (3.3) on candor to the tribunal, the requirement not to engage in disruptive conduct applies to "ancillary"(fn33) proceedings, such as depositions.(fn34) "The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition." Lawyers who wonder how to handle deposition abuses should, therefore, remember that bad behavior in depositions is expressly addressed by the comments to two Rules.(fn35) Deposition misbehavior may be misconduct punishable by a sanction.
As noted earlier, the broad language of Rule 8.4 includes as "professional misconduct" lawyer conduct that is "prejudicial to the administration of justice."(fn36) None of the terms in the paragraph is defined, and the meaning of "prejudicial to the administration of justice" is unclear. That uncertain meaning has led lawyers to challenge the imposition of sanctions for conduct in violation of that "standard" as...
