The Florida Bar

August 15, 1966

The rule restricting communications with jurors does not preclude a lawyer from making a brief, courteous response to casual remarks unrelated to the trial addressed to the lawyer by a juror after discharge of the jury.

Note: 64-5 is not included in this volume because of the subsequent amendment to Canon 23.

Canon: 23
Opinions: 64-5, ABA 109

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar, reciting the recent amendment to Canon 23, inquires as to the proper conduct required of an attorney when approached by a juror subsequent to the discharge of the jury to discuss a matter totally unrelated to the trial. For example, this experienced trial counsel mentions instances of past occasions upon which jurors have inquired as to whether he knew a particular individual in the home community of the lawyer, or to express appreciation for the opportunity to serve as a juror or similar innocent remarks. The attorney is concerned that the restrictive language of Canon 23 might preclude any response of consequence by the attorney to such matters.

Canon 23 was amended by the Supreme Court of Florida as a result of a petition filed by The Florida Bar, 186 So.2d 509 (Fla. 1966). This petition followed the findings of one or more select committees of The Florida Bar pronounced subsequent to the rendition of various opinions by the Ethics Committees of The Florida Bar and American Bar Association which, to say the least, resulted in a state of uncertainty as to the proper conduct in connection with post-trial interviews of jurors (see our Opinion 64-5, and ABA Opinion 109 [1934]). In its amended form, Canon 23 provides as follows:

23. Relations With Jury

All attempts to curry favor with juries by fawning, flattery or pretended solicitude for their personal comfort are unprofessional, suggestions of counsel, looking to the comfort or convenience of jurors, and propositions to dispense with argument, should be made to the Court out of the jury's hearing.

Both before and during the trial, a lawyer should avoid conversing or otherwise communicating with a juror on any subject, whether pertaining to the case or not. Subject to any limitations imposed by law it is a lawyer's right, after the jury has been discharged, to interview the jurors solely to determine whether their verdict is subject to any legal challenge provided he has reason to believe that ground for such challenge may exist, and further provided that prior to any such interview made by him or under his direction, he shall file in the cause, and deliver a copy to the trial judge and opposing counsel, a notice of intention to interview such juror or jurors setting forth in such notice the name of each such juror. The scope of the interview should be restricted and caution should be used to avoid embarrassment to any juror and to avoid influencing his action in any subsequent jury service.

The italicized language was added by the Supreme Court of Florida on its own volition and was not a part of the amendment urged by The Florida Bar. We necessarily observe that at this early time following the amendment of this Canon, we are without judicial guidelines as to the intention of the Court in establishing this rule of practice as part of the Canon. We must therefore particularly emphasize our usual admonition that our opinions are advisory only.

Nevertheless, we find nothing in the Canon, even as amended, which precludes a brief and courteous response to comments which are manifestly unrelated to the trial proceedings themselves or the result of the trial and are in fact typical of the courteous and cordial relationship which should prevail among those engaged in the dispensation of justice. Indeed, it would be unduly provocative in our judgment for a lawyer to fail to be courteous on such occasions. It appears to us that it is an “interview” subsequent to the verdict to which the Canon is addressed. Nevertheless, we think that the better practice would be for counsel to terminate as promptly as consistent with courtesy such conversations, particularly until we are favored with some judicial expression concerning the Canon as amended. We think this would be particularly true of such conversations conducted in the courtroom itself, which, in our judgment, should be as brief as possible and if possible in the presence of opposing counsel.

We believe the question raised to be particularly pertinent and trust that it will be one kept well in mind in evaluating the practical workings of the new Canon as amended. All Canons recommended by the American Bar Association are presently under review for possible revision, and it may well be that The Florida Bar will wish to give further consideration to problems relating to Canon 23, including the ones pertinently raised here, at such time as any recommended general revision is considered in Florida.

[Revised: 08-24-2011]