FLORIDA BAR ETHICS OPINION
August 15, 1966
Advisory ethics opinions are not binding.
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
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 ). 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.