Improper Influence

Improper Influence

Paragraph (a) of Rule 3.5 is one short sentence, and one phrase in it does most of the work. A lawyer shall not "seek to influence a judge, juror, prospective juror or other official by means prohibited by law."¹ Read it in three parts. The verb "seek" looks to what the lawyer is trying to do, so on its face the rule does not wait for the decision-maker to be swayed. The list of persons covers whoever has power to decide a pending matter. And the closing phrase, "by means prohibited by law," limits everything before it. Students skip that phrase more often than any other.

The phrase is there because influence, by itself, is what lawyers are hired to exert. Briefs, evidence, and oral argument all try to move a decision-maker, and the adversary system runs on them. Michigan authority describes "the advocate's function" as "to present evidence and argument so that the cause may be decided according to law."² That language comes from a state source, so it explains the idea but is not a holding about the Model Rule. The idea still draws the line. A bribe or a threat gives the decision-maker no reason the law recognizes; it puts money or fear where evidence and argument belong. A rule against all influence would forbid the lawyer's job, while a rule against forbidden channels leaves the job alone.

A fact pattern in which a lawyer works hard to change a judge's mind describes no violation unless it also supplies an unlawful channel. Bribery is the clearest case, and a threat against a juror is another. The intensity of the effort and the importance of the outcome do not change the analysis. The means the lawyer chose does.

The rule lists no forbidden means of its own; it borrows them from other law. Criminal law proscribes many forms of improper influence upon a tribunal, and Michigan's code of judicial conduct specifies others, with which an advocate should be familiar.³ Borrowing spares the ethics rule from defining improper channels a second time, since legislatures and judicial bodies have already decided which ones are unacceptable. It also explains why one set of facts can produce two consequences: a lawyer who uses a channel the criminal law forbids can face prosecution in addition to professional discipline.

Two neighboring rules deserve a quick check. The rule against conduct prejudicial to the administration of justice (Rule 8.4(d) in the Model Rules) is a natural companion charge, so an answer that finds a problem under paragraph (a) should test it as well.⁴ Rule 4.2 is a different rule with a different target. Sometimes called the ex parte contact rule or the anti-contact rule, it bars a lawyer from communicating about the subject of the representation with anyone the lawyer knows to be represented by counsel in the matter, absent that lawyer's consent.⁵ It protects represented persons and their lawyers; paragraph (a) protects the integrity of the decision-maker.

Social media has given the same wrong a modern form. re McCool involved a lawyer in a contentious family law matter who created an online petition asking the presiding judge to give up the case and then used social media and a blog to urge readers to contact the judges. The Louisiana Attorney Disciplinary Board suspended her for a year and a day and required her to attend Ethics School.⁶ Next to the punishment of other attorneys for similar conduct, the sanction looked high, particularly because she had no prior disciplinary infractions. The Board pointed to her use of the internet and social media to carry out the misconduct, observing that the offending language "remains present and accessible on the internet today."⁷

The campaign resembles the envelope in the first hypothetical more than it resembles the brief. The lawyer was recruiting an audience to press a sitting judge in a pending case, from outside the record. A petition is not a bribe, though, and paragraph (a) reaches only means prohibited by law. The Board's discussion in this excerpt addresses the sanction, not how far the paragraph extends. Treat the matter as a pattern for exam facts, and do not cite it as a holding on the paragraph's reach. When facts show a lawyer building a campaign to push public pressure onto a decision-maker in a pending case, argue that the channel is improper, then name the law that makes it so: a criminal statute, a judicial conduct provision, a court rule, or a companion rule such as Rule 8.4(d).

Step four does the real work. Students who stop at step two conclude that every persuasive effort is a violation, and students who skip step four treat any unattractive pressure as one. The rule asks what the law forbids about the channel the lawyer chose.