May a lawyer write jurors to compliment their service, thank them for a verdict, or question them after discharge about their deliberations?

Plain-English summary

The committee was asked whether it is ethical for an attorney to write jurors after a jury term to compliment them on their service, and whether an attorney or his client may thank a juror for the verdict. It quoted Canon 23, which condemns currying favor with juries and directs that a lawyer never converse privately with jurors and avoid communicating with them before and during trial even on matters foreign to the cause.

The committee said that while writing jurors after a term may not be a clear violation of Canon 23, it would seem to violate its spirit, and it noted an ABA decision (Dec. No. 257, Appendix A, 1957 edition) that a lawyer may not write to or communicate with jurors before or after trial. More pointedly, it said the practice is subject to criticism as a Canon 27 violation because it constitutes indirect advertising or soliciting. As to thanking a juror for a verdict, the committee found that practice criticizable for two reasons: the lawyer may have subsequent cases before the same panel, so even a sincere thanks would curry favor, and it might embarrass jurors to be openly thanked, particularly before the losing litigant, by implying the jury did the winner a favor beyond his due.

The committee then addressed a third question it felt should be answered: it said the practice of interrogating a juror after discharge about the deliberation, even with the sincere purpose of learning the effect of certain evidence or tactics, has been condemned by the ABA committee as unethical, both as a Canon 23 violation and because it violates the jury's privilege to keep its deliberations secret and inviolable. The committee added the ABA's qualifications, concurring in ABA Opinion No. 109: the rule does not reach a situation where a verdict was mistakenly announced or recorded and a lawyer must interview jurors to prevent a miscarriage of justice, nor a case where a juror was guilty of fraud, citing Clark v. United States, 289 U.S. 1 (1933).

Currency note

This opinion was issued in 1961, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The advertising and solicitation concerns underlying part of the opinion no longer reflect current law: the United States Supreme Court held in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that categorical bans on truthful lawyer advertising violate the First Amendment, and rules on contact with jurors are set out differently today. 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: Could a lawyer write jurors after a term to compliment their service?

A: No. The committee said it offends the spirit of Canon 23 and, more pointedly, constitutes indirect advertising or soliciting under Canon 27.

Q: Could a lawyer or client thank a juror for the verdict?

A: The committee said the practice is subject to criticism, because the lawyer may have later cases before the same panel and because openly thanking jurors can embarrass them before the losing litigant.

Q: Could a lawyer question jurors after discharge about their deliberations?

A: Generally no. The committee said it is unethical and violates the secrecy of jury deliberations, except to correct a misrecorded verdict to prevent a miscarriage of justice or where a juror committed fraud.

Background and rules framework

The opinion applied Canon 23 of the Canons of Professional Ethics, adopted in Oklahoma, which bars currying favor with and communicating with jurors, and Canon 27, which bars indirect advertising, to post-trial contact with jurors. It concurred in ABA Opinion No. 109 and cited Clark v. United States. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 23 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): bars currying favor with jurors and communicating with them.
• Canon 27 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): bars indirect advertising and soliciting.

Cases:

• Clark v. United States, 289 U.S. 1 (1933): juror fraud as an exception to the secrecy of deliberations.

Other opinions cited:

• ABA Formal Opinion No. 109: interrogating jurors after discharge about deliberations is unethical, with limited exceptions.
• ABA decision Dec. No. 257 (Appendix A, 1957 edition): a lawyer may not write to or communicate with jurors before or after trial.

See also

• Okla. Bar Ethics Op. 212: Writing directly to a represented town board
• Okla. Bar Ethics Op. 203: Cooperating with a newspaper feature on a night-law-school student

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-216/

Original opinion text

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

Adopted December 14, 1961

INQUIRY

(1) Is it ethical for an attorney, following a jury term, to write the jurors (or a juror) complimenting them on their service during the term?

(2) Is it ethical for an attorney or his client to thank a juror or jurors for the verdict?

OPINION

Canon 23 reads as follows:

“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. A lawyer must never converse privately with jurors about the case; and both before and during the trial he should avoid communicating with them, even as to matters foreign to the cause.”

While the practice inquired of in the first inquiry may not constitute a clear violation of Canon 23, it would certainly seem to violate its spirit. A decision of the Ethics Committee of the American Bar Association not embodied in a formal opinion (Dec. No. 257 Appendix A of the 1957 edition of the Opinions of the American Bar Committee) states:

“A lawyer may not write to or communicate with jurors either before or after trial.”

The practice is, however, more subject to criticism as violation of Canon 27 in that it most assuredly constitutes a method of indirect advertising or soliciting.

The subject of the second inquiry, is we believe, a much more common practice, but one which is equally subject to criticism for two reasons. The lawyer may have subsequent cases before the same panel and his action, though sincere, would constitute an attempt to “curry favor.” Secondly, and more important, it might well be embarrassing to jurors to be openly thanked for a verdict, particularly in front of the losing litigant. It implies that the jury did the winning litigant a favor beyond that to which he was entitled.

These two questions give rise to a third which, we feel, should likewise be answered. The practice which some lawyers pursue of interrogating a juror after discharge about the deliberation with the sincere purpose of ascertaining the effect of certain evidence or tactics on the jury has been specifically condemned by the American Bar Association Committee as unethical, not only as a violation of Canon 23, but because it violates the privilege of a jury to have its deliberations “secret and inviolable.” The Opinion adds, however, that it is not intended to extend to a situation where there has been a mistake in the announcing or recording of a verdict; and in the protection of his client’s interests, it may be necessary for a lawyer to interview members of the jury to prevent a miscarriage of justice. Nor does it extend to a case where a juror has been guilty of fraud. See Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993. Compare note in 47 Harvard Law Review, 717 (Feb., 1934) on United States v. Pleva, 66 F.2d 529 (C.C.A.2d, 1933)__Opinion 109 of the Committee on Professional Ethics and Grievances of the American Bar Association—We concur in that Opinion.