IMPARTIALITY AND DECORUM OF THE TRIBUNAL

(a) Influencing Decision Maker. A lawyer shall not seek to influence a judge, juror, prospective juror, discharged juror, or other decision maker by means prohibited by law. (b) Harassing or Embarrassing Decision Maker. A lawyer shall not harass a judge, juror, prospective juror, discharged juror, or other decision maker or embarrass such person in such capacity. (c) Disruption of Tribunal. A lawyer shall not engage in conduct intended or reasonably likely to disrupt a tribunal. (d) Communication with a Judge or Official. In an adversary proceeding, a lawyer shall not communicate as to the merits of the cause with a judge or an official before whom the proceeding is pending except: (1) in the course of the official proceeding in the cause; (2) in writing if the lawyer promptly delivers a copy of the writing to the opposing counsel or to the adverse party if not represented by a lawyer; or (3) orally upon notice to opposing counsel or to the adverse party if not represented by a lawyer. (e) Communication with Jurors. A lawyer shall not: (1) before the trial of a case with which the lawyer is connected, communicate with anyone the lawyer knows to be a member of the venire from which the jury will be selected, with respect to the case or with the intent or reasonable likelihood of influencing the member with respect to the case; (2) during the trial of a case with which the lawyer is connected, communicate with a juror except in the course of the proceedings, with the judge and opposing counsel present; (3) during the trial of a case with which the lawyer is not connected, communicate with a juror concerning the case; (4) after dismissal of the jury in a case with which the lawyer is connected, communicate with a juror regarding the trial except that: (i) upon leave of the court, which leave shall be freely granted, a lawyer may ask questions of, or respond to questions from, jurors about the trial, provided that the lawyer does so in a manner that is not calculated to harass or embarrass any juror and does not seek to influence the juror's actions in future jury service in any particular case; and (ii) upon leave of the court for good cause shown, a lawyer who believes there are grounds for legal challenge to a verdict may conduct an in-court examination of jurors or former jurors to determine whether the verdict is subject to challenge. A motion for in-court examination of discharged jurors under this subsection (e)(4)(ii) shall be served no later than 10 days after the judgment has been entered unless good cause is shown for the failure to serve the motion within that time. If the examination is permitted, the court shall prescribe the time, manner, place, and scope of the examination. COMMENTS: [1]Many forms of improper influence upon a tribunal are proscribed by criminal law. A lawyer is required to avoid contributing to a violation of such provisions. [2]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. [3]It has long been recognized and acknowledged that post-discharge respectful conduct between a trial lawyer (or those acting on the lawyer's behalf) and jurors before whom the lawyer has appeared benefits both the lawyer and the jurors. The lawyer may gain insights that enable the lawyer to better represent future clients and the juror may have some mysteries (usually related to the admission or rejection of evidence) solved so as to better appreciate the workings of the justice system. In addition, it is not at all uncommon for lawyers and judges to talk casually about a former case that has become final. Hawai‘i's original HRPC 3.5(a) and (b), adopted in December 1993, provided: A lawyer shall not: (a)seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b)communicate ex parte with such a person except as permitted by law; or (c)engage in conduct intended to disrupt a tribunal. Original HRPC 3.5(a) and (b) appeared to preclude "all post-trial communications between attorneys and jurors, relating to the subject matter of the trial, in the presence of all parties to the proceeding or their legal representatives." State v. Furutani, 76 Hawai‘i 172, 177, n.8, 873 P.2d 51, 56 n.8 (1994). The same prohibition would logically have applied to lawyer-judge post-decision contacts. The supreme court asserted that HRPC 3.5 prohibited post-trial contact that was permissible under DR 7-108 of the prior Code of Professional Responsibility. Id. As interpreted, original HRPC 3.5 prohibited post-trial contact in an oblique manner: original paragraph (a) precluded seeking "to influence a judge, juror, prospective juror or other official" while original paragraph (b) precluded "communicat[ion] ex parte with such a person." A discharged juror was not specifically referenced in original HRPC 3.5(a)-(c). Original HRPC 3.5 referred to jurors and prospective jurors. There are sound public policy reasons for precluding ex parte contact with jurors and prospective jurors, and limiting contact with discharged jurors. Enforcement of original HRPC 3.5(b) was enjoined by the United States District Court for the District of Hawai‘i in Rapp v. Disciplinary Board, United States District Court Civ. No. 95-00779 DAE. While the Rapp case was pending in federal court the supreme court proposed, the Hawai‘i State Bar Association approved, and, on May 8, 1996, the supreme court adopted amendments so that HRPC 3.5 provided: