S.C. App. Ct. R. 3.5

As amended through November 6, 2024

Rule 3.5 - Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, member of the jury venire or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or member of the jury venire after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment;

(d) engage in conduct intended to disrupt a tribunal; or

(e) participate in any judicial portrait fund or memorial except upon the following conditions:

(1) the soliciting entity shall be a law school or an established state, county or local bar organization or association which was not formed for the primary purpose of soliciting judicial portrait funds or memorials;

(2) except for an officer of the soliciting entity, no lawyer or judge other than the intended honoree shall be identified in any communication preparatory to the creation of, or during the solicitation for, the fund or memorial; and

(3) anonymity of donors shall be guaranteed, and any solicitation shall so state.

S.C. App. Ct. R. 3.5

COMMENT:

[1] 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 lawyer is required to avoid contributing to a violation of such provisions. The South Carolina version of paragraph (a) differs from the Model Rule in its reference to a "member of the jury venire" rather than "prospective juror" since any person technically could be the latter.

[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceedings such as judges, masters or jurors, unless authorized to do so by law or court order.

[3] A lawyer may on occasion want to communicate with a juror or member of the jury venire after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.

[4] 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.

[5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 1.0(n) and Rule 3.3, Comment [1].