BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 1996-3
(Inquiry No. )
Communicating with jurors after trial
Subject to any applicable statutes, court rules, or court customs, an attorney may send a letter to jurors after they are discharged asking them to talk with him about the trial, provided he does not harass or embarrass the jurors or attempt to influence their actions in future jury service. Moreover, subject to other laws, he may use the information he obtains in a book or other publication about the trial as long as the publication will not materially prejudice any ongoing adjudicative proceeding.
EC 7-29 through EC 7-32
Inquiring attorney recently conducted a jury trial. (The inquiring attorney does not state where the trial was conducted or whether his client won or lost.) During voir dire, the full name and the town or village in which each juror resided were provided to the trial attorneys. From this information, the inquiring attorney is able to obtain the mailing address for each juror.
The jury trial is now completed, and the inquiring attorney wishes to send a letter to the jurors asking them to meet with him to discuss the trial and the jury’s deliberations. The purpose of the interviews with the jurors is to obtain information for use in a book or other publication that the inquiring attorney intends to write concerning the particular trial. The letter to the jurors would advise them that they have the right not to communicate with the attorney.
Inquiry No. 1: After a jury trial is completed, may a lawyer contact the jurors by letter asking them to meet with him to discuss the trial and the jury’s deliberations?
Inquiry No. 2: If the answer to the first inquiry is yes, may the attorney use the information obtained during the juror interviews in a book or other publication that the attorney intends to write about the particular trial?
Inquiry No. 1: Yes, subject to stated limitations.
Inquiry No. 2: Yes, subject to stated limitations.
Communications with jurors are governed by ER 7-108.
We note that some jurisdictions prohibit or severely restrict communications with jurors or their families after trial. see, e.g., Sixberry v. Buster, 88 F.R.D. 561 (E.D. Pa. 1980) (holding that a lawyer was not entitled to communicate with jurors after trial “to improve his skills as a lawyer,” and noting the “strong and well-established policy of the federal courts” not to permit attorney communications with jurors absent some evidence of juror impropriety) ; N.J. Court Rule 1:16-1 (post-trial juror interviews are not permitted absent leave of court for good cause shown); Oregon Ethics Op. 1995-143 (1995) (post-trial interviews with jurors are not prohibited by DR 7-108 (D) , but are prohibited by state law and by a local federal court rule). See generally ABA/BNA LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT 61:806-807 (August 26, 1992 update) (collecting cases restricting post-trial contact with jurors); Annotation, 19 A.L.R.4th 1209 (1983) (same).
We have not researched statutes, court rules, or court customs regarding communications with jurors or their families after trial because this Committee’s jurisdiction is limited to interpreting the Code of Professional Responsibility. We therefore urge the inquiring attorney to research any applicable statutes, court rules, and court customs. If any applicable statute, court rule, or custom restricts communications with jurors after trial, a violation of that rule might well be “conduct that is prejudicial to the administration of justice” in violation of DR 1-102 (A) (5) .
With those preliminary considerations out of the way, we turn to our analysis of the two inquiries.
A. Analysis of Inquiry No. 1
DR 7-108 provides, in full, as follows:
A. Before the trial of a case a lawyer connected therewith shall not communicate with or cause another to communicate with anyone the lawyer knows to be a member of the venire from which the jury will be selected for the trial of the case.
B. During the trial of a case:
1. A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.
2. A lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.
C. DR 7-108(A) and (B) do not prohibit a lawyer from communicating with members of the venire or jurors in the course of official proceedings.
D. After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence the juror’s actions in future jury service.
E. A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a member of the venire or a juror.
F. All restrictions imposed by DR 7-108 upon a lawyer also apply to communications with or investigations of members of a family of a member of the venire or a juror.
G. A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her, family of which the lawyer has knowledge.
Since the inquiries involve conduct that will occur after trial is completed, DR 7-108 (A), (B) & (C) do not apply. However, DR 7-108(D) through (G) do apply.
The most important provision is DR 7-108(D). That subparagraph prohibits only those questions or comments “calculated merely to harass or embarrass the juror or to influence the juror’s actions in future jury service.” This language is explained in EC 7-29, which provides, in pertinent part, as follows:
EC 7-29: . . . After the trial, communication by a lawyer with jurors is permitted so long as a lawyer refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases….When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror.
Thus, the inquiring attorney may communicate with a juror after trial as long as he does not make comments or ask questions intended to harass or embarrass the juror, or that would, “influence actions of the juror in future cases.” The inquiring attorney may therefore send a letter to the discharged jurors asking them to speak with him about the trial.
Our conclusion is consistent with New York State Ethics- Op. 246 (1972), in which a lawyer inquired whether, after the jury was discharged, he could “question a juror concerning the views of the juror or the panel as a whole about the case or any other matter relating to the jury’s verdict.” The New York State Committee on Professional Ethics answered the question in the affirmative. The Committee did not engage in any analysis, but answered the question simply by quoting DR 7-108 and EC 7-29, which were virtually the same in 1972 as they are today.
Our conclusion is also consistent with ethics opinions from several other jurisdictions. See Virginia Ethics Op. 1549 (1993) (lawyer who believes a jury’s verdict was contrary to the vast preponderance of the evidence may contact the jurors after their term of jury service has expired to find out if the jury considered extraneous matters in reaching the verdict); Pennsylvania Ethics Op. 91-52 (1991) (law firm that represented a defendant who was found liable in product liability case may assign a paralegal to telephone jurors for post-trial interviews provided that the paralegal does not intimidate or pressure the jurors). Philadelphia Ethics Op. 91-27 (1991) (lawyer may distribute questionnaire to jurors after a civil trial to determine each juror’s background, political views, and reactions to specific evidence or events at the trial provided that the lawyer does not violate local court rules or customs requiring prior court approval, the lawyer does not harass or embarrass the jurors or attempt to influence their actions in later jury service, and the questionnaire states that the jurors have no obligation to answer any of the questions). But see Brassell v. Brethauer, 305 So.2d 217 (Fla. App. 1974) (post-trial juror interviews violate DR 7- 108(D) unless the lawyer has “reasonable grounds” for the interview).
The terms “harass” and “embarrass” are commonly understood so we need not define them in detail. If the inquiring attorney was on the losing side, however, he should be careful not to criticize the jury’s verdict or reasoning. In the ABA Standards for the Administration of criminal Justice, for example, the Comment to Standard 3-5.4 (“Relations with Jury”) states that neither prosecutors nor defense attorneys should discuss a case with a jury in a way critical of the jury’s verdict.
The phrase “influence the juror’s actions in future jury service” is more cryptic. We think it refers to questions or comments that a reasonable person would expect to encourage a juror to avoid future jury service or to decide a case improperly. Moreover, the attorney should think carefully before telling the discharged jurors about evidence that was excluded or not presented during trial, since that might lead the jurors to believe, in future jury service, that the lawyers are not presenting the “real story” at trial. See Colorado Ethics Op. 70 (1985) (a lawyer may not disclose to discharged jurors any information that was, not presented to the jury at trial if the lawyer’s intention is to criticize the verdict, influence a juror’s actions in future jury service, or harass the jurors). Other comments by a lawyer might also violate DR 7-108(D), but we do not need to set forth detailed guidelines here because the inquiring attorney has not asked about any specific questions or comments.
DR 7-108(E) reinforces subparagraph (D) by prohibiting a lawyer from personally conducting or in any way causing another to conduct a “vexatious or harassing investigation” of a juror. As a threshold matter, we note that DR 7-108(E) applies to post-trial investigations. The term “juror” applies not only to those still serving on a jury at trial, but also to those who have been discharged. We think that because DR 7-108(D), which applies only “[a]fter discharge of the jury,” uses the terms “member of that jury” and “juror” rather than “former juror” or “discharged juror.”
The term “investigation” would encompass personal interviews with a juror, as well as any other efforts to find out about a juror, whether from the juror personally or from third parties, including the juror’s friends, family, or business or social contacts. We do not define “vexatious” or “harassing” because their common meaning is well understood.
DR 7-108(F) reinforces subparagraphs (D) find (E) by applying the restrictions of those subparagraphs to investigations of a juror’s family. Thus, if the inquiring attorney intends to talk to any family members of the jurors, he must abide by all of the provisions of DR 7-108.
EC 7-30 and 7-31 elaborate on the meaning of DR 7-108(E) and (F) as follows:
vexatious or harassing investigations of members of the venire or jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on the lawyer’s behalf who conducts an investigation of members of the venire or jurors should act with circumspection and restraint.
Communications with or investigations of members of families of the venire or jurors by a lawyer or by anyone on the lawyer’s behalf are subject to the restrictions imposed upon the lawyer with respect to communications with or investigations of members of the venire and jurors.
That brings us to DR 7-108 (G) , which requires a lawyer to “reveal promptly to the court” any “knowledge” of “improper conduct” by a juror or a member of a venire, or by any person toward a member of the venire or a juror, or by any person toward a juror’s family. If the inquiring attorney obtains “knowledge” of any such improper conduct during his post-trial interviews, is he obligated to report it to the court even though the trial is over? Yes, he is. This is clear from the following sentence in EC 7-29:
Were a lawyer to be prohibited from communication after trial with a juror, the lawyer could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected.
The quoted sentence from EC 7-29 should be coupled with EC 7-32, which provides as follows:
EC 7-32: Because of the duty to aid in preserving the integrity of the jury system, a lawyer who hears of improper conduct by or towards a member of the family of either should make a prompt report to the court regarding such conduct.
Thus, if the inquiring attorney obtains knowledge of any improper conduct by or toward a juror, a venire, or a member of the family of a juror or venire member, he will be obligated under DR 7-108(C) to report that conduct.
If the inquiring attorney obtains knowledge of misconduct by an attorney in violation of DR 7-108, the inquiring attorney my be obligated to report that misconduct pursuant to DR 3.-103 (A). A report in compliance with DR 7-108(G) would fulfill any duty to report that the attorney might have under DR 1-103(A), which requires a report either to a tribunal or to some “other authority empowered to investigate or act upon such violation.” However, a report to some “other authority” under DR 1-103(A) would not fulfill the duty to report to “the court” under DR 7-108(G). If the inquiring attorney obtains evidence of a violation of DR 7-108 that falls short of “knowledge,” he need not report the possible violation, but DR 1-103(B) will obligate him to reveal that evidence to a tribunal or other investigative authority upon a proper request.
B. Analysis of Inquiry No. 2.
The second inquiry is whether the inquiring attorney may use the information he obtains from the discharged jurors for the purpose of writing a book or other publication about the particular trial? Nothing in the Code of Professional Responsibility directly addresses this question, and DR 7-108 places no restrictions on the use of information properly obtained from jurors. The only Code provision that may apply is DR 7-101 (“Trial Publicity”). DR 7- 107(A) provides as follows:
A lawyer participating in or associated with a criminal or civil matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
The inquiring attorney does not say whether his recently completed trial was civil or criminal, or whether either side appeared the verdict. If no appeal is pending, then an extrajudicial statement (such as a book or article) could not materially prejudice the proceeding. However, if either side has filed an appeal, the attorney should consider the possibility that his book or article would materially prejudice the appeal or any retrial that might be ordered. Moreover, we cannot tell from the inquiry whether there are any related ongoing proceedings (such as other trials arising out of the same facts) that could be prejudiced by the inquiring attorney’s publication. If there is any appeal or related ongoing proceeding, DR 7-107(B) and (C) provide detailed guidance as about the kinds of statements that presumably would and would not cause material prejudice.
A remaining open question is whether the inquiring attorney must notify the jurors, before interviewing them, that he intends to use the information to write a book or article about the trial. The inquiring attorney’s proposed letter to the jurors will advise them that he wishes to talk with them about the trial and that they have no obligation to talk with him, but the inquiry does not expressly state whether the inquiring attorney will advise the jurors that he is writing a book. In our opinion, the Code of Professional Responsibility does not require him to notify the jurors of his purpose before interviewing them. Whether he must notify them before he actually refers to them by name in a book or other publication is a question of law beyond our jurisdiction.
[Approved by the Executive Subcommittee on 12/12/95; Approved by the Full Committee on 1/31/96]