5IMPARTIALITY AND DECORUM OF THE TRIBUNAL

(a)A lawyer shall not: (1)seek to influence a judge, juror, prospective juror, or other official by means prohibited by law; (2)communicate ex parte with such a person except as provided in subsection (b) of this Rule; or (3)engage in conduct intended to disrupt a tribunal. (b)After the jury is discharged, a lawyer may ask questions of, or respond to questions from, jurors provided the lawyer does so in a manner that neither harasses nor embarrasses the juror and does not seek to influence the juror's actions in future jury service. Likewise, after final disposition of a matter a lawyer may ask questions of a judge or other official regarding the matter and may respond to questions from the judge or other official, provided the lawyer does so in a manner that neither harasses nor embarrasses the judge or official and does not seek to influence the judge's or official's actions in future judicial or official service. A juror or judge is free to refuse to comment or respond. COMMENTS: In anticipation of further amendment after a decision in Rapp v. Disciplinary Board, subsection (b) was intended to be an interim rule. In Rapp, the United States District Court for the District of Hawai‘i concluded: . . . that [original HRPC] 3.5(b) as interpreted and applied suffer[ed] from two chief infirmities. First, the language of the rule prohibiting ex parte communication with jurors "except as permitted by law," is unconstitutionally vague and overbroad. . . . The plain language of [original] Rule 3.5(b) [did] not specifically indicate whether a judge ha[d] the authority to grant leave, or whether "good cause" or "exigent circumstances" for seeing the interviews must be shown. Moreover, this court has not found any Hawai‘i case law which either sets forth an exception to [original] Rule 3.5(b) in circumstances where counsel suspect that jury misconduct has occurred or a procedure that an attorney needs to follow if that attorney does have suspicions. Additionally, no Hawai‘i case has discussed what might amount to good cause warranting jury interviews, if good cause is the applicable standard. . . . [I]t is unclear how the rule would be applied in circumstances which may warrant the grant of post verdict interviews by a trial court. That is, a description of the mechanism for review by a trial judge is conspicuously absent from the rule. Moreover, the standard "as permitted by law" provides little guidance to lawyers as to when jurors can appropriately be contacted. . . . Second, the probable efficacy of [original] Rule 3.5, as it has been interpreted by the Hawai‘i Supreme Court, in protecting jury members and their verdicts is minimal at best. . . . If the aim of Rule 3.5 is to protect the sanctity of jury verdicts and prevent jury harassment, it misses the mark. Instead, as interpreted, the rule would theoretically allow two unscrupulous lawyers who agree to interview jurors together, to engage in a jury harassment "free for all" with no court supervision. Clearly, the limitations [original] Rule 3.5 places on ex parte jury communications is not well-tailored to achieve the State's compelling interests. The United States District Court concluded: . . . the State Defendants have demonstrated a compelling interest in preserving the integrity of the trial process by protecting jurors from post trial harassment and unnecessary intrusion by lawyers. There is no question that a properly tailored rule . . . can pass constitutional muster. The United States District recognized two compelling state interests that could justify a rule restricting attorney contact with jurors: "[1] the public policy holding jury deliberations and verdicts inviolable and [2] the aim of protecting the privacy of jurors." However, the United States District Court concluded original HRPC 3.5(b) was not sufficiently tailored to meet the State's compelling interests and enjoined its enforcement. Upon review of the United States District Court's order, the Supreme Court of Hawai‘i proposed additional amendments to Rule 3.5. After discussions with the Hawai‘i State Bar Association and the Disciplinary Board and consideration of the concerns expressed by those entities, the supreme court adopted the current Rule. The current Rule eliminates the phrase "as permitted by law." In furtherance of the valid public policy interests in keeping jury deliberations inviolable and protecting the privacy of jurors, subdivision (e) retains the trial judge as the gatekeeper between the attorneys and the jury. Further, subdivision (e) sets standards by which to determine requests for post-discharge juror interviews. Subdivision (e)(4)(i) recognizes that respectful post-discharge debriefing of a jury is beneficial to both lawyers and jurors. The possibility of jury harassment requires the oversight of the judge, but where the purpose of the requested interview is to educate the lawyer and the jury, the value of respectful debriefing in such that leave for respectful post-trial debriefing should be freely granted. Subdivision (e)(4)(i) presumes that discharged jurors are free to decline participation in such post-trial debriefings. Subdivision (e)(4)(ii) is designed to enforce the policies of holding jury thought processes inviolable and protecting the privacy of jurors. Thus, to avoid juror harassment by unscrupulous lawyers and lawyers on fishing expeditions, as well as the jury harassment free for all referred to by the United States District Court, an attorney seeking to challenge a verdict due to jury irregularity must (i) show good cause for a belief that grounds for a challenge exist, (ii) obtain leave of the court to question a juror or jurors and, if the motion to examine the jury is granted, (iii) conduct the examination in court and under conditions set by the judge. In sum, Rule 3.5(e) provides oversight by the trial judge, circumstances in which communications with jurors are permitted, and standards by which to decide requests to interview discharged jurors. [4]The dignity of the court is to be respected and maintained at all times. Court proceedings shall be conducted in a manner that protects the dignity and seriousness of the proceedings. Lawyers appearing before a court, including remote hearings, shall dress in appropriate courtroom attire, unless exceptional circumstances dictate otherwise, and shall engage in conduct that is respectful to the court, the litigants, and other counsel. For remote hearings, a lawyer shall appear with the video camera on and shall be clearly visible, unless otherwise excused by the court. (Amended August 22, 2023, effective January 1, 2024.)