Can a trial lawyer mail a neutral pre-trial questionnaire to people on the potential jury list to streamline voir dire?

Plain-English summary

The opinion addressed a plaintiff's lawyer in a personal injury case who wanted to mail a neutral questionnaire to people on the potential jury list before trial. The answers would shorten voir dire by letting both sides focus questioning on disclosed areas of concern, and defense counsel had reviewed the questionnaire without objection. The question was whether Rule 7.8(a) prohibited the lawyer from sending it.

The opinion concluded that Rule 7.8(a) imposes a blanket prohibition on a lawyer connected with a trial communicating with anyone the lawyer knows to be a member of the venire from which the jury will be selected, in order to protect veniremen and jurors from extraneous influences and safeguard the impartiality essential to the judicial process. It read the rule to bar the lawyer from sending the questionnaire even in a way that avoids identifying the sender. The opinion drew a line, however, at communications by the court: because the prohibition reaches only extrajudicial communications, if the court approves the questionnaire and agrees that it will be sent under the court's direction and letterhead, distribution does not violate Rule 7.8(a), even if the lawyer pays the cost of distribution.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a North Carolina trial lawyer mail a questionnaire to prospective jurors?

A: Not directly. The opinion concluded Rule 7.8(a)'s blanket prohibition bars a lawyer connected with the trial from communicating with members of the venire, even by an anonymized questionnaire.

Q: Does it help that the questionnaire is neutral and defense counsel agreed?

A: No. The opinion treated the prohibition as a blanket one and did not carve out neutral content or opposing-counsel consent; the bar still applied to the lawyer sending it.

Q: Is there any way to use the questionnaire?

A: Yes, through the court. The opinion concluded that if the court approves and distributes the questionnaire under its own direction and letterhead, that is not a Rule 7.8(a) violation, and the lawyer may pay the distribution cost.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.8(a), the provision barring a lawyer connected with a trial from communicating with members of the venire, which corresponds to Model Rule 3.5 on preserving the impartiality of the tribunal. The opinion relied on the rule's Comment about protecting veniremen and jurors from extraneous influences, and distinguished court-directed communications as outside the rule's reach.

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality and decorum of the tribunal; communication with jurors)
• North Carolina Rule 7.8(a)

See also

• NC Ethics Op. RPC 212: notifying opposing counsel before seeking default
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-214/

Original opinion text

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

Inquiry:

Attorney A, who is the plaintiff's counsel in a personal injury case, would like to submit a jury questionnaire, prior to trial, to the people who are on the potential jury list. The questions on the questionnaire are neutral. Receiving answers to the questionnaire would save a significant amount of time in jury selection because both defense counsel and plaintiff's counsel could limit jury voir dire to questions about areas of concern disclosed by the questionnaire and matters involving particular facts of the case. The counsel for the defendant has reviewed the questionnaire and does not object to the questionnaire being sent to prospective members of the jury. Does Rule 7.8(a) prohibit Attorney A from submitting the written questionnaire to prospective members of the jury?

Opinion:

Rule 7.8(a) contains a blanket prohibition on communications by a lawyer connected with the trial of a case with "anyone he knows to be a member of the venire from which the jury will be selected for the trial of the case." As noted in the Comment to the rule, "veniremen and jurors should be protected against extraneous influences" in order to "safeguard the impartiality that is essential to the judicial process." It would appear that Rule 7.8(a) prohibits Attorney A from sending the questionnaire himself to prospective members of the jury even if it is done in a way that avoids identifying who is sending the questionnaire. However, the ban of Rule 7.8(a) does not apply to communications with prospective members of the jury by the court since the prohibition is only directed towards extrajudicial communications. Therefore, if the court approves of the questionnaire and agrees that the questionnaire will be sent out under the court's direction and letterhead, it would not be a violation of Rule 7.8(a) even if the lawyer pays for the cost of distribution.