May a trial lawyers' association recruit former jurors for an educational panel discussing their trial experiences?

Plain-English summary

A member of the Academy of Florida Trial Lawyers proposed an educational program in which several former jurors, often jury foremen who had served in cases of varying size and outcome, would be invited by a letter on Academy stationery to take part in a panel discussion. The letter would explain the educational value of jurors describing highlights of the trials in which they served, would state that participants would not be asked to reveal their own or any juror's feelings about the case, the lawyers, or the judges, and the person in charge would avoid contacting any juror from a case in which the inviting attorney or his firm had been involved.

The committee unanimously saw significant merit in the program and approved it in the abstract, noting there was no doubt it was permissible under the American Bar Association version of DR 7-108(D). The sole question was whether the Florida version of DR 7-108(D) and EC 7-29, which restrict a lawyer's right to interview a juror after discharge and bar even an unconnected lawyer from communicating with a venireman or juror about the case, allowed the contact without prior individual judicial sanction for each juror. Subject to the restrictions of the Florida Code, the committee found the proposal ethical and of value. It also cautioned that great care should be taken to avoid any undue invasion of the jury room or embarrassment to jurors, that jurors should be clearly advised they were under no duty to participate and not pressured, and that a moderator appointed or approved by the presiding judge should be in a position to terminate any inappropriate question or discussion.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 7-29 and DR 7-108(D)), the subject matter of which is now addressed by Rule 4-3.5, which superseded the former Code effective January 1, 1987. Treat this page as historical context, not current guidance. Verify against current Rule 4-3.5 before relying on any specific requirement mentioned here.

Common questions

Q: Did the committee approve the former-juror panel program?

A: Under this opinion, yes, in the abstract and subject to the restrictions of the Florida Code. The committee found the proposal ethical and of value so long as the program's safeguards were observed.

Q: What safeguards did the committee identify?

A: The opinion said jurors should be clearly advised they were under no duty to participate and should not be pressured, the program should avoid undue invasion of the jury room or embarrassment to jurors, and a moderator appointed or approved by the presiding judge should be able to terminate any inappropriate question or discussion.

Q: Was the Florida rule stricter than the ABA version?

A: The committee said the program was clearly permissible under the ABA version of DR 7-108(D), and its only doubt was whether the stricter Florida version of DR 7-108(D) and EC 7-29 allowed the contact without prior judicial sanction for each juror; it concluded the proposal was ethical subject to the Florida Code's restrictions.

Background and rules framework

The opinion interpreted EC 7-29 and DR 7-108(D) of the former Code, which restricted communications with jurors and veniremen about a case. That subject is now in Rule 4-3.5, governing the impartiality and decorum of the tribunal, which the opinion notes superseded the former Code effective January 1, 1987. The Model Rule analogue is Rule 3.5.

Citations and references

Rules of Professional Conduct:

• EC 7-29; DR 7-108(D); ABA DR 7-108(D) [Code of Professional Responsibility; subject matter now in Rule 4-3.5(d)]

See also

• FL Bar Ethics Op. 74-6: Contacting Grand Jurors

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-40/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-40-1.pdf

Original opinion text

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

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.
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.