1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
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211-216
217-222
223-228
229
Made
The Committee has separated Paragraph (f) into two paragraphs -- a Paragraph (f) that is
identical to ABA Model Rule 3.4(f) and a new Paragraph (g) that incorporates with slight revision
the substance of DR 7-109(B). The exceptions in Paragraph (f) for relatives of a client and
employees of a corporate client are not appropriate with respect to requesting or assisting a person
to take action that will render the person unavailable to appear as a witness by way of deposition or
at trial. Paragraph (g) has been re-lettered as Paragraph (h).
PROPOSED RULE 3.5
IMPARTIALITY AND DECORUM OF THE TRIBUNAL
prohibited by law;
with a judge, juror, or a member of the jury pool, prior to or
during a proceeding, except as permitted by law;
communication is prohibited by law or is reasonably likely to harass or embarrass the juror
or influence the juror’s actions in future jury service;
or
pursuant to the
authority of a tribunal.
[1] Many forms of improper influence upon a tribunal are proscribed by criminal law or
state or local rules of procedure. Others are specified in the Tennessee Code of Judicial Conduct,
with which an advocate should be familiar. For example, a lawyer shall not give or lend anything of
value to a judge, judicial officer or employee of a tribunal, except as permitted by Section (C)(4) of
Canon 5 of the Code of Judicial Conduct. A lawyer, however, may make a contribution to the
campaign fund of a candidate for judicial office in conformity with Section (B)(2) of Canon 7 of
the Code of Judicial Conduct.
[2] Paragraph (b) does not prohibit communicating with a judge on the merits of the cause
in writing if the lawyer promptly delivers a copy of the writing to opposing counsel and to parties
who are not represented by counsel. Oral communication is permitted upon adequate notice to
opposing counsel and parties who are not represented by counsel.
[3]A communication with or an investigation of the spouse, child, parent or sibling of a
juror or a member of the jury pool will be deemed a communication with or an investigation of the
juror.
[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.
[5] Paragraph (e) prohibits a lawyer from engaging in conduct intended to disrupt a
deposition as well as a trial.
See Rule 1.0(i)
“Tribunal”See Rule 1.0(m)
Paragraph (a): DR 7-110 (A) provides that “[a] lawyer shall give or lend anything of value
to a judge, official or employee of a tribunal, except as permitted by Section (C)(4) of Canon 5 of
the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a
candidate for judicial office in conformity with Section (B)(2) under Canon 7 of the Code of
Judicial Conduct.”
Paragraph (b): With regard to Paragraph (b) as applicable to judges and officials,DR 7-
110 currently reads as follows:
communicate, as to the merits of the cause with a judge or an official before whom the
proceeding is pending, except:
counselor to the adverse party if that party is not represented by a lawyer.
party is not represented by a lawyer.
Code of Judicial Conduct.
as follows:
(A) Before the trial of a case a lawyer connected therewith shall not communicate with or
cause another to communicate with anyone the lawyers knows to be a member of the venire
from which the jury will be selected for the trial of the case.
communicate with any member of the jury.
another to communicate with a juror concerning the case.
DR 7-108(A) and (B) do not prohibit a lawyer from communicating with venire
persons or jurors in the course of official proceedings.
. . . .
(F) All restrictions imposed by DR 7-108 upon a lawyer also apply to communications with
or investigations of members of a family of a venireperson or a juror.
lawyer
was connected, the lawyer shall not ask questions of or make comments to a member of that
jury that are calculated merely to harass or embarrass the juror or to influence his actions in
future jury service.
. . . .
or investigations of members of a family of a venireperson or a juror.
Paragraph (d) is very similar to DR 7-108(E).
DR 7-106(C)(6) provides that a lawyer shall not engage in "undignified or
Paragraph (a) is identical to ABA Model Rule 3.5(a).
Paragraph (b):Paragraph (b) is identical to ABA Model Rule 3.5(b) except that its
applicability has been limited to communications prior to and during the proceeding.
Communicating with jurors after discharge of the jury is separately addressed in Proposed Rule
3.5(c).
Paragraph (c): There is no counterpart to Paragraph (c) in the ABA Model Rules. Model
Rule 3.5(b) prohibits communications with jurors “unless permitted by law.”
Paragraph (e): Paragraph (e) is identical to ABA Model Rule 3.5(c), except for the reference
to proceedings conducted pursuant to the authority of a tribunal that was added to make clear that
lawyers may not engage in disruptive or disorderly conduct in depositions.
All references to “prospective jurors” have been replaced with “members of the jury
pool”to clarify that the prohibition on communication only applies to persons who have been
summoned to jury duty.
Paragraph (c) has been modified to prohibit a lawyer from communicating with a juror after
the trial is over if the communication is reasonably likely to harass or embarrass the juror or
influence the juror’s actions in future jury service. This prohibition is similar to DR 7-108(D), but
judges the lawyer’s communication by its effect on the juror rather than the lawyer’s motive for the
communication.
Paragraph (e) has been modified so it will only prohibit intentionally disruptive conduct.
The modification conforms Paragraph (e) to ABA Model Rule 3.5(c). While the Committee
deplores any conduct -- much of which is prompted in the heat of the moment --that interferes
with the orderly conduct of a proceeding, the Committee believes that professional discipline should
be reserved for intentionally disruptive behavior.
Comment [2] was added to explain that the prohibition in Paragraph (b) against ex parte
communication was not meant to prohibit communications currently permitted by DR 7-110(2) and
(3).
Made
The Board of Professional Responsibility has recommended the addition of a new
paragraph providing that “a lawyer shall not loan money or other things of value to or on behalf of
a judge, or members of the judge’s immediate family.”The Committee believes this issue is
appropriately addressed by Comment [1] and has also recommended that the issue be further
addressed in a new Comment to Rule 8.4 that explains the prohibition in Rule 8.4(f) against
assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law.
TRIAL PUBLICITY
not make an extrajudicial statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.
Notwithstanding paragraph (a), a lawyer may state:
of the persons involved;
to believe that there exists the likelihood of substantial harm to an individual or to the public
interest; and
the identity, residence, occupation and family status of the accused;
if the accused has not been apprehended, information necessary to aid in
apprehension of that person;
the fact, time and place of arrest; and
the identity of investigating and arresting officers or agencies and the length of
the investigation.
Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would
believe is required to protect a client from the substantial undue prejudicial effect of recent publicity
not initiated by the lawyer or the lawyer's client. Astatement made pursuant to this paragraph shall
be limited to such information as is necessary to mitigate the recent adverse publicity.
No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a)
shall make a statement prohibited by paragraph (a).
[1] It is difficult to strike a balance between protecting the right to a fair trial and
safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some
curtailment of the information that may be disseminated about a party prior to trial, particularly
where trial by jury is involved. If there were no such limits, the result would be the practical