The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 71-40
September 24, 1971

Selection of former jurors to participate in a program sponsored by the academy of trial lawyers would not violate the prohibition against communication with jurors if the jurors were clearly advised that they were under no obligation to participate.

CPR: EC 7-29; DR 7-108(D); ABA DR 7-108(D)

Committeeman Massey stated the opinion of the committee:

A practicing attorney who is a member of the Academy of Florida Trial Lawyers desires to put on a program in the following manner. Several jurors (usually the foremen of juries) would be selected, with an attempt to obtain jurors who had participated variously in large verdict cases, small and medium size cases, and non-guilty verdict cases. The jurors would be approached by letter, written on the stationery of the Academy, which basically explains that attorneys would obtain substantial educational value from jurors explaining in panel discussion highlights and interesting points of the trial in which they participated as juror, matters which made impressions upon them, and points which they felt were not adequately explained. The letter would also state that if they were willing to participate in such a panel program, they would not be asked to reveal their personal feeling or the feelings of any particular juror in the case as to the case itself or the lawyers or judges involved. As a further precaution, the person from the Academy in charge of the program would not contact any juror who had participated in any case which such attorney or his firm had been involved. In short, the proposal is allegedly made for educational purposes and with every attempt to avoid any pressure upon the juror or embarrassment to any participant in the trial.

The Committee unanimously sees significant merit to the proposed program and in the abstract approves thereof. There is no doubt the proposal is permissible under the American Bar Association version of DR 7-108(D).

The sole question in the minds of the Committee is whether or not the Florida version of DR 7-108(D) and EC 7-29 would allow the contact with the juror without prior individual judicial sanction for each of the jurors [now embodied in Rule 4-3.5(d), Rules of Professional Conduct, which superseded the former Code effective January 1, 1987]. Reference should be made to the Disciplinary Rule wherein the lawyer connected with the case is prohibited from communicating with a juror regarding the trial except to determine whether the verdict may be subject to legal challenge, in which case he would follow the procedure provided in EC 7-29. However, under Ethical Consideration 7-29, after the jury has been discharged, any lawyer's right to interview a juror is restricted. The Florida provision reads:

Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venire-man or a juror about the case.

This, of course, does create some impediment to the proposed program; however, subject to the restrictions of the Florida Code of Professional Responsibility, the Committee finds the proposal to be ethical and of value.

Assuming the inquirer proceeds to present the program, the Committee would further suggest there are certain dangers involved. Great care should be observed to avoid any undue invasion of the jury room to the embarrassment of the jurors. At all times, the jurors should be clearly advised that they are under no duty to participate and they should not be pressured in any way. There probably should be a moderator appointed or approved by the presiding judge of the jurisdiction in which the program is presented who would be in a position to terminate any inappropriate question or discussions.

[Revised: 08-24-2011]