Ezel / Ethics Opinions / MBAR
MBAR January 19, 2006

Can a trial lawyer ask the judge to instruct jurors that they may talk to the lawyers after the verdict?

Short answer: Only if the requested instruction states the Rule 3.5(d) limits completely, including that the lawyer may never ask about the jury's deliberations. If the lawyer's purpose is to get jurors talking about deliberations, the request is forbidden.

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This page answers the general question as of 2006. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2006
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The committee was asked whether a trial lawyer may ask the judge to instruct jurors, at the start of a case or after the verdict, that they are free to talk with the lawyers once the case concludes. The analysis turns on Mass. R. Prof. C. 3.5(d), which bars a lawyer, after the jury is discharged, from initiating any communication with a juror without leave of court for good cause, and provides that "In no circumstances shall such a lawyer inquire of a juror concerning the jury's deliberation processes."

The opinion identifies three problems with the proposed instructions. First, the instructions told jurors they could decide on their own to talk to the lawyers but did not mention the deliberation-process restriction. The committee concludes that any requested instruction should describe the restrictions of Rule 3.5(d) completely so jurors are not misled about the lawyers' responsibilities. Second, the committee reads the deliberation restriction strictly: a lawyer may listen to a juror's comment about the deliberation process but may not ask anything, even "what happened next." Given the Supreme Judicial Court's history of forbidding lawyer efforts to get jurors talking about the jury room, the committee concludes the SJC meant the rule to apply both literally and strictly.

Third, the committee addresses whether requesting such instructions is itself proper. Rule 3.5(d) lets a lawyer initiate contact only with leave of court for good cause shown. The opinion concludes that if the lawyer's purpose in requesting the instruction is to encourage the juror to talk about the deliberation process, that conduct is forbidden by the rule. The committee notes that Massachusetts has taken a different direction from the rest of the country, retaining a broader restriction than the post-2002 ABA Model Rule 3.5(c).

In practice

Under this opinion, conduct that asks a judge to invite post-verdict juror contact is permissible only when the proposed instruction states the Rule 3.5(d) limits in full, including the absolute bar on inquiring into deliberations. Per the opinion, a request made for the purpose of encouraging jurors to discuss their deliberations is prohibited. The committee expressly limited itself to the Massachusetts rule and declined to address any constitutional questions about Rule 3.5(d), noting its rules do not permit it to give advice on substantive law.

Common questions

Q: Can a Massachusetts lawyer contact a juror after the trial ends?

A: Not on the lawyer's own initiative. Rule 3.5(d) bars a lawyer connected to the case from initiating any communication with a discharged juror without leave of court for good cause shown.

Q: If a juror starts the conversation, what can the lawyer ask?

A: The opinion reads the rule strictly: even if a juror initiates contact, the lawyer may listen to comments about the deliberation process but may never inquire into the jury's deliberations, and may not ask questions intended only to harass, embarrass, or influence future jury service.

Q: Can a lawyer ask the judge to tell jurors they are free to talk to counsel?

A: Only if the requested instruction describes the Rule 3.5(d) restrictions completely. An instruction that omits the deliberation-process bar would mislead jurors and is improper, and a request aimed at getting jurors to discuss deliberations is forbidden.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 3.5 (corresponding to Model Rule 3.5 on impartiality and decorum of the tribunal). The committee traces the Massachusetts provision to former DR 7-108(D) rather than the ABA Model Rules. The SJC amended the disciplinary rule in 1991 and carried it forward as Rule 3.5(d), over recorded objections from Justice Wilkins (joined by Justice Liacos) and the SJC's own rules committee. The opinion contrasts this with the narrower post-2002 ABA Model Rule 3.5(c), which Massachusetts had not adopted.

Citations and references

Rules of Professional Conduct:

  • Model Rule 3.5 (impartiality and decorum of the tribunal; post-discharge juror contact)
  • Mass. R. Prof. C. 3.5(d) (broader Massachusetts restriction on initiating juror contact)

Cases:

  • Commonwealth v. Solis, 407 Mass. 398 (1990), cited in Justice Wilkins's dissent on discovery of misconduct through post-trial juror contact

Other authorities cited:

  • Wilkins, "The New Massachusetts Rules of Professional Conduct: An Overview," 82 Mass. L. Rev. 261 (1997)

See also

Source

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