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Attorney E-Newsletter

June 2006

Rule 3.5: Impartiality and Decorum of the Tribunal

As the title of the rule implies, Rule 3.5 of the Rules of Professional Conduct sets forth a variety of rules intended to limit conduct which could threaten the impartiality or disrupt the orderly process of proceedings before tribunals. A "tribunal" is defined in Rule 1.0(m) as "a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity."

RPC 3.5(a) and (b) prohibit attempts to improperly influence or to communicate ex parte, respectively, with judges, jurors or prospective jurors, and other court officials. These sections are unchanged by the 2004 amendments, except for small wording changes to RPC 3.5(b) which make it clear that the prohibition on ex parte communications applies only during the course of a proceeding, and that such communications are permissible where allowed by court order. Comment 1 notes, "Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar." A new Comment 2 concisely summarizes the requirements of these sections: "During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order."

A new Section 3.5(c) addresses how lawyers may communicate with jurors after the discharge of the jury. Before discharge, such communications are prohibited by Section 3.5(b). Many lawyers make a practice of speaking to jurors after a case is concluded to obtain feedback and commentary on their presentations. Also, sometimes lawyers need to investigate concerns about possible external tampering with juries (see Pa. Rule of Evidence 606(b) regarding when a juror may or may not testify regarding the validity of the jury's verdict). The new Section 3.5(c) provides that after discharge, an attorney may communicate with jurors unless the contact is forbidden by law or court order, the juror has made known an unwillingness to speak, or the communication involves misrepresentation, coercion, or duress of harassment. Comment 3 notes that the lawyer "must respect the desire of the juror not to talk with the lawyer."

Finally, Section 3.5(d) [formerly 3.5(c)] read before the amendments that a lawyer must not engage in conduct disruptive of a tribunal. This section was amended to prohibit only conduct intended to disrupt a tribunal, so the rule does not apply to negligence with a disruptive effect. Disruptive conduct may include active behavior such as inappropriate shouting or namecalling, and also passive behavior such as intentional failure to abide by court orders or leaving a proceeding in progress. Comment 4 discusses the balance to be struck between aggressively protecting a client's rights and cooperating with the tribunal. New Comment 5 notes, "The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition."

U.S. Supreme Court Limits First Amendment Coverage of Government Lawyers

On May 30, 2006, the United States Supreme Court handed down an important decision in the case of Garcetti v. Ceballos, No. 04-473, 126 S.Ct. 1951, 74 USLW 4257 (5/30/2006). Ceballos was a Deputy District Attorney with the Los Angeles County District Attorney's office. In the course of his duties he was called upon to review the veracity of a police affidavit upon which a prosecution was based. Ceballos became convinced that the affidavit contained false information, and so advised his supervisors with a recommendation that the case be dismissed. When his supervisors overruled his recommendation and proceeded with the prosecution, Ceballos continued to express his dissent, and eventually was called as a witness for the defense. Ceballos then brought a civil rights action, alleging that he had been subjected to disciplinary action and adverse professional consequences in retaliation for his expression of his views. He contended that such actions violated his right to freedom of speech under the First Amendment.

The District Court granted a defense motion to dismiss Ceballos's complaint, but on appeal the Ninth Circuit Court of Appeals reversed and reinstated his complaint. The District Attorney appealed the decision to the United States Supreme Court. In an opinion written by Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, the Supreme Court reversed the Ninth Circuit's decision and dismissed the complaint.

Historically, it had generally been the rule that employees have little protection under the First Amendment for statements made in the course of their employment, but the Supreme Court created an exception to this rule, holding in the case of Pickering v. Board of Education, 391 U.S. 568 (1968), that a teacher who was fired after writing a letter to the editor of the local newspaper critical of certain school district policies was protected by the First Amendment in speaking as a citizen on matters of public concern.

The majority opinion written by Justice Kennedy rejected the argument that Ceballos's communications were protected by the First Amendment, finding that communications made in the course of one's employment are distinguishable from the kind of pure public speech found to be protected in Pickering:

The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration--the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case--distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Slip Opinion at 9.

It is important to note that the Court was not addressing any duties Ceballos may have had under the Rules of Professional Conduct. In fact, Justice Kennedy took note of the importance of exposing misconduct and also the fact that attorneys may have responsibilities under standards of professional conduct which the ruling does not limit:

Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. See, e.g., Cal. Rule Prof. Conduct 5-110 (2005) ("A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause"); Brady v. Maryland, 373 U.S. 83 (1963). These imperatives . . . protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. Slip Opinion at 14.

Justices Stevens, Souter (joined by Stevens and Ginsberg), and Breyer issued dissenting opinions. Justice Stevens observed that "it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors" (Slip Opinion at 2). Justice Souter noted that the majority's position silences speech by those who by their occupation are particularly qualified to speak on the matters in question:

The need for a balance hardly disappears when an employee speaks on matters his job requires him to address; rather, it seems obvious that the individual and public value of such speech is no less, and may well be greater, when the employee speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties. Slip Opinion at 4.

Justice Breyer's dissent struck a position somewhere between the majority's finding of no protection and Justice Souter's preference to apply the Pickering test, seeing the need to apply that test "only in the presence of augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public's affairs." Slip opinion at 6. Of all the opinions, Justice Breyer's addresses the impact of the Rules of Professional Conduct most thoroughly:

[T]he speech at issue is professional speech--the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the government's own interest in forbidding that speech is diminished. [citations omitted] The objective specificity and public availability of the profession's canons also help to diminish the risk that the courts will improperly interfere with the government's necessary authority to manage its work. Slip Opinion at 3-4.

The Supreme Court's decision in Garcetti v. Ceballos will not have a great impact on the daily lives of most lawyers, even government lawyers. However, it sheds new light on the balance between vigorous expression and the need of organizations to maintain managerial control, a line of conflict upon which employed lawyers often find themselves due to the duties imposed on them by the Rules of Professional Conduct, which on occasion may not serve the purposes of their employers.

Tip of the Month: Substituting Counsel? Cue the Client in Advance!

"Only you can make this world seem right -- Only you can make the darkness bright." "Only You,"
Buck Ram/Andre Rand.

In many firms and law offices it is common practice to allow lawyers to substitute for other lawyers at hearings, depositions, even client conferences. Disciplinary Counsel frequently receive complaints from clients who are upset when the lawyer they believed was handling their case does not appear and some other lawyer they have not met appears in their original attorney's place, and particularly so when the client gets the impression that the substitute counsel is less familiar with the case. While such a practice does not violate the Rules of Professional Conduct, at least as long as the lawyers are within the same firm, counsel should be aware that many clients find it very disturbing. When scheduling considerations compel substitution of lawyers, good practice and good client relations indicate that the lawyer who has the primary relationship with the client should communicate with the client in advance if at all possible, so the client is not surprised at the hearing.

A New Look At www.padb.us

By the time you receive this, the new design for the Disciplinary Board's website, www.padb.us (a/k/a www.padisciplinaryboard.org) will be in service. As the slogan says, new look, same product.

The new website is divided into two distinct sections, one designed for attorneys and the other for members of the public. All the features of the old design are still there, and then some. The reorganization of the material is designed to give both attorneys and consumers quicker access to the information they need, both with better readability. In addition, revisions to some of the tools on the site will result in quicker and more intuitive searches with more readable, more printable, and generally more useable results. The new design should also load faster and display better on a variety of monitors and browsers.

From the homepage, users have four options. They may choose from three menu items: "Attorney Information," "Consumer Information," or "Look Up an Attorney." Or, users can see the top news items on the front page and proceed with a click directly to the news story.

The "Attorney Information" page offers links to find rules, look up registration information, obtain forms, gather information on registration and reinstatement, or review frequently asked questions specific to lawyers. The "Consumer Information" section allows users to get information on how the disciplinary system works, look up attorney registration information, obtain complaint forms and brochures, or review a set of frequently asked questions geared to nonlawyers. The "Look Up an Attorney" page provides a streamlined interface for reviewing any attorney's public registration and disciplinary information. In addition, all three pages have bar menus which provide ready access to almost any information on the site.

The "Newsroom" is reorganized for better readability and quicker access to important stories, as well as more easily searchable archives. We hope to add expanded reporting of important cases as well as up-to-date information on rule changes and other developments affecting the law of professional responsibility in Pennsylvania.

As always, comments and suggestions from users of the website are welcome. Address comments to comments@padisciplinaryboard.org.