The Florida Bar

Ethics Opinion

Opinion 71-40

September 24, 1971
Advisory ethics opinions are not binding.
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.

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which superseded the former Code effective January 1, 1987].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.