Obeying Tribunal Rules

Rule 3.4(c) forbids a lawyer to “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”¹ The prohibition reaches the procedural and other requirements codified in the rules of a court or other tribunal, and it reaches any court order issued under those rules.² The word knowingly aims the rule at deliberate disobedience by a lawyer who is aware of the obligation. Coverage of procedural rules, and not only of orders, matters again in the discovery context taken up later in this chapter. The Federal Rules of Civil Procedure set detailed protocols for discovering an opposing party's testifying experts and bar discovery of non-testifying experts except in exceptional circumstances. On the reasoning of Professors Hazard and Hodes and attorney Peter Jarvis, an informal, ex parte “debriefing” of an opposing party's expert is therefore prohibited, at least by clear implication.³

Rule 3.4(c) is unremarkable in one respect, because it repeats a demand that runs throughout the Model Rules: the lawyer must be law-abiding. Rule 8.4 requires compliance with legal requirements, including conformance to the Rules of Professional Conduct, avoidance of criminal acts, fraud, and misrepresentation, and avoidance of sexual harassment and unlawful discrimination. Rule 1.2(d) forbids a lawyer to counsel or assist a client in conduct the lawyer knows is criminal or fraudulent.⁴ Rule 3.4(c) applies the same duty to the rules and orders of the tribunal in which the lawyer is appearing.

The exception rests on the premise that a lawyer sometimes has a good-faith ground to doubt that an obligation is valid. Comment 6 to Rule 8.4 recognizes a lawyer's choice to “refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.”⁵ Rule 3.4(c) carries that idea into the courtroom, but it attaches a condition. The refusal must be open.

An open refusal is the opposite of a surreptitious violation. The lawyer declines to comply and says so, asserting that no valid obligation exists. A lawyer who violates a court rule or order in secret forfeits any claim of good faith, because the attempt to conceal the behavior undermines that claim and weakens the credibility of a later challenge to the obligation's validity.⁶ Silence therefore cannot satisfy the exception.

An open refusal also changes who enforces the obligation. When a lawyer openly resists compliance and claims the rule or order is invalid, responsibility for enforcement moves away from the professional disciplinary process and returns to the tribunal whose rule or order has been questioned. That tribunal has the power to impose sanctions for violating its order or rule, and it may hold the disobedient lawyer in contempt.⁷ So long as the refusal is open and rests on an assertion that no valid obligation exists, the noncompliance should not be punished as professional misconduct. The validity of the obligation, and the consequences of violating it if it proves valid, are left to the judicial process.⁸

Two limits keep the exception from swallowing the rule. The first concerns timing. A lawyer cannot invoke the exception belatedly after being charged with disobedience, because the rule demands open refusal from the outset if noncompliance is to be treated as something other than professional misconduct.⁹ The second concerns alternatives. If the lawyer can readily test the obligation by asking the judge to reconsider or by appealing to a reviewing court, immediate resort to disobedience is unnecessary and therefore not in good faith.¹⁰

When an exam stem has a lawyer defy an order or rule, three questions decide the outcome: whether the refusal was open, whether it came at the outset, and whether the lawyer had a ready way to test the obligation instead.

Hypothetical Illustration

A judge orders a defense lawyer not to ask about a juror's prior relationship with a witness. Believing the ruling wrong, the lawyer asks the forbidden question anyway on cross-examination, and the court declares a mistrial. He never told the court he would not comply, and he could have asked the judge to reconsider and, failing that, preserved the objection for appeal. The lawyer is subject to discipline for knowing disobedience with no open refusal.¹¹

In a separate matter, a lawyer disagrees with a court rule on how documents are filed and simply stops complying, saying nothing to the court. Charged with misconduct months later, she says she always thought the rule invalid. Her claim arrives after the fact, and the silence undermines it, so it does not qualify as an open refusal.¹²

Both lawyers may sincerely have believed the obligation invalid, and sincerity does not matter, because the exception turns on what the lawyer told the tribunal and when. The first lawyer said nothing before asking the forbidden question and had other routes available. The second said nothing until charges came.

Students often read the exception as a safe harbor, but it removes only disciplinary exposure. The tribunal keeps its power to sanction and to hold the lawyer in contempt, so an open refusal hands the dispute to the court with no assurance that the court will agree.¹⁴ The limits on the exception point the same way. Reconsideration by the judge and appeal to a reviewing court are the ordinary channels for testing an order, and disobedience is not in good faith when they are readily available. On an exam, the safe course for a lawyer who thinks the judge is mistaken is to comply while seeking reconsideration or review. Open refusal is a last resort for a lawyer prepared to accept the tribunal's response.

Exam Analysis Steps

Because the exception has several conditions and a separate question about consequences, run a fact pattern in this order:

Identify the obligation, whether a rule of the tribunal or an order issued under it, that the lawyer did not meet.
Ask whether the lawyer knowingly disobeyed it, since the rule reaches only knowing disobedience.
Ask whether the lawyer made an open refusal, telling the tribunal that the obligation would not be met because no valid obligation exists, or instead concealed the noncompliance.
Ask whether the refusal came at the outset and whether reconsideration or appeal was readily available, because a belated claim, or immediate disobedience when those routes exist, is not in good faith.
Separate discipline from the tribunal's response, since a qualifying refusal takes the matter out of the disciplinary process while sanctions and contempt remain available to the court.

The fourth step does most of the work on exam stems. The usual trap is to treat the lawyer's sincere belief that the order was wrong as enough to end the analysis.

Obeying Tribunal Rules

Endnotes15