After a jury is discharged, can a lawyer make a brief courteous reply when a juror makes a casual remark that has nothing to do with the trial?

Plain-English summary

An experienced trial lawyer, citing the recent amendment to Canon 23, asked how to conduct himself when a juror approached him after the jury's discharge to discuss something wholly unrelated to the trial, such as asking whether he knew a particular person in the lawyer's home community or expressing appreciation for the chance to serve. He was concerned that the restrictive language of the amended Canon 23 might bar any meaningful response. The committee recounted that the Supreme Court of Florida had amended Canon 23 on the Bar's petition, 186 So.2d 509 (Fla. 1966), and that the court had added language of its own restricting post-verdict juror interviews to those checking for legal challenges to the verdict, after notice filed in the cause.

The committee found nothing in the amended Canon precluding a brief and courteous response to comments manifestly unrelated to the trial or its result, observing it would be unduly provocative for a lawyer to fail to be courteous on such occasions. It read the Canon as addressed to an "interview" after the verdict. Noting it had no judicial guidelines yet on the court's intent, the committee said the better practice was to terminate such conversations as promptly as courtesy allowed, particularly in the courtroom and ideally in the presence of opposing counsel, until further judicial guidance issued.

Currency note

This opinion was issued in August 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct, and it construed a version of Canon 23 that was itself newly amended at the time. A lawyer's communications with jurors and prospective jurors are now governed by Rule 4-3.5 of the Rules Regulating The Florida Bar (Model Rule 3.5). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer respond at all to a discharged juror's casual remark?

A: Yes. The committee found nothing in the amended Canon 23 that precluded a brief and courteous response to comments manifestly unrelated to the trial or its result.

Q: What conduct did Canon 23 actually restrict?

A: The committee read the Canon as addressed to a post-verdict "interview" of jurors, which the amended Canon limited to determining whether the verdict was subject to legal challenge, after filing notice naming the jurors.

Q: What did the committee recommend as the better practice?

A: To terminate such casual conversations as promptly as courtesy permitted, especially in the courtroom and if possible in the presence of opposing counsel, pending further judicial guidance on the amended Canon.

Background and rules framework

The opinion construed the former Canon 23 on relations with the jury, as amended by the Supreme Court of Florida in 1966. Communications with jurors are now addressed by Rule 4-3.5 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 3.5. The committee distinguished a regulated post-verdict juror "interview" from an incidental courteous exchange on an unrelated subject.

Citations and references

Rules of Professional Conduct:

• Canon 23 [Canons of Professional Ethics, as amended 1966; see current Rule 4-3.5]

Cases:

• In re Canons of Ethics Governing Attorneys, 186 So. 2d 509 (Fla. 1966), amending Canon 23

Other opinions cited:

• Florida Opinion 64-5 (post-trial juror interviews; not republished after the Canon 23 amendment)
• ABA Opinion 109 (1934)

See also

• FL Bar Ethics Op. 69-17: Contacting Jurors After Trial

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-47/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-47.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 66-47
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 23.
Canon: 23
Opinions: 64-5, ABA 109
Case: In re Canons of Ethics Governing Attorneys, 186 So.2d 509 (Fla. 1966)
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.