Can a lawyer hire an investigator to watch prospective jurors' homes and cars without contacting them?

Plain-English summary

A lawyer wished to retain an investigator to make visual observations of prospective jurors' homes and cars to learn more about them, without the lawyer or the investigator making any contact with those being observed. The question was whether retaining an investigator for such observation, with no contact, would be an ethical violation.

The committee identified several applicable rules: Rule 3.5 (a lawyer shall not seek to influence a juror or member of the jury venire by means prohibited by law, or communicate ex parte except as permitted by law), Rule 4.4 (a lawyer shall not use means to embarrass a third person in representing a client), and Rule 8.4(e) (conduct prejudicial to the administration of justice). It recalled Advisory Opinion 93-27, which found that absent court approval Rule 3.5 would prohibit using a service to telephone prospective venire members with standard questions, and which warned that pretrial investigation of potential jurors "can meet with disastrous consequences" and that "mere contact or socializing despite lack of ulterior motive may constitute misconduct."

The committee concluded that, technically, visual observation of a prospective juror's home or car should not constitute an ethical violation, provided (1) absolutely no contact is made with the juror or family and (2) the observation is conducted so as not to embarrass the juror. It strongly cautioned, however, that the risks may well outweigh the limited information obtainable: there is a danger of unintentional contact, and a danger that the observation may become known to the juror or become harassing or embarrassing. The committee stressed that using a third party to investigate does not relieve the lawyer of responsibility for improper contact, paraphrasing the South Carolina Supreme Court that an attorney who engages in such conduct "does so at his own peril" (In the Matter of Delgado, quoted in In the Matter of Smith).

Currency note

This opinion was issued in 2000, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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 lawyer have an investigator observe prospective jurors' homes and cars?

A: The committee concluded such visual observation is technically not a violation if absolutely no contact is made with the juror or family and the observation does not embarrass the juror.

Q: Does using an outside investigator shield the lawyer from responsibility?

A: No. The committee stressed that a third party conducting the investigation does not relieve the lawyer of responsibility if it results in improper contact; the lawyer acts "at his own peril."

Q: Which rules govern observing or contacting jurors?

A: The committee identified Rule 3.5 (influencing or ex parte contact with jurors), Rule 4.4 (embarrassing third persons), and Rule 8.4(e) (conduct prejudicial to the administration of justice).

Background and rules framework

The opinion interpreted South Carolina RPC 3.5 (impartiality and decorum of the tribunal; jurors), RPC 4.4 (respect for the rights of third persons), and RPC 8.4(e) (misconduct prejudicial to the administration of justice), corresponding to the like-numbered Model Rules, drawing on prior Advisory Opinion 93-27.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.5 / Model Rule 3.5: impartiality of the tribunal; contact with jurors.
• South Carolina RPC 4.4 / Model Rule 4.4: rights of third persons.
• South Carolina RPC 8.4(e) / Model Rule 8.4: conduct prejudicial to the administration of justice.

Cases:

• In the Matter of Delgado, 279 S.C. 293, 306 S.E.2d 591 (S.C. 1983).
• In the Matter of Smith, 338 S.C. 465, 527 S.E.2d 758 (S.C. 2000).

Other opinions cited:

• S.C. Bar Advisory Opinion 93-27: telephoning prospective venire members.

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-00-14/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 00-14

Lawyer, in an effort to learn more about prospective jurors, wishes to retain an investigator to make visual observations of prospective jurors' homes and cars. Lawyer does not intend that either he or the investigator retained will make any contact with the prospective jurors who are being observed.

QUESTION:
Would it be an ethical violation for lawyer to retain an investigator to make visual observations of prospective jurors'homes and cars without making any contact with the prospective jurors?

OPINION:
Several of the Rules of Professional Conduct are applicable to lawyer contact or communication with a juror or prospective juror. Rule 3.5 provides in relevant part that a Alawyer shall not: (a) [s]eek to influence a . . . juror [or] member of the jury venire . . . by means prohibited by law; [or] (b) [c]ommunicate ex parte with such a person except as permitted by law . . . . Additionally, under Rule 4.4, a lawyer shall not use means to embarrass a third person in the representation of his/her client. Finally, it is considered to be professional misconduct under Rule 8.4(e) for a lawyer to A[e]ngage in conduct that is prejudicial to the administration of justice.

In response to an inquiry on a related matter, this Committee in Advisory Opinion 93-27 found that absent court approval, Rule 3.5 would prohibit an attorney's use of a service to telephone members of a prospective venire to ask standard questions. In its discussion, the Committee warned that A[t]he pretrial investigation of potential jurors can meet with disastrous consequences and cautioned that Amere contact or socializing despite lack of ulterior motive may constitute misconduct. The Committee's warning is just as appropriate to the present inquiry.

The present inquirer seeks to avoid prohibited communication by having the hired investigator merely observe the prospective juror's house and/or car without making personal contact. Technically, a visual observation of a prospective juror's home and/or car should not constitute an ethical violation provided that (1) absolutely no contact is made with the prospective juror or his/her family and (2) the observation is conducted in a manner that does not cause embarrassment to the prospective juror.

That said, the Committee strongly cautions the inquirer that the risks of the proposed conduct may very well outweigh the limited information that could be obtained from such an observation. First, there is a danger of unintentional contact between the investigator and the prospective juror. Second, there is a danger that the observation may be conducted in such a manner that the prospective juror becomes aware of it and/or the observation becomes harassing or embarrassing. The fact that a third party conducts the investigation does not relieve the lawyer from his/her responsibility in the event the investigation results in improper contact with a prospective juror. To paraphrase the South Carolina Supreme Court, an attorney who engages in such conduct, "does so at his own peril." In the Matter of Delgado, 279 S.C. 293, 296-97, 306 S.E.2d 591, 594 (1983) (quoted in In the Matter of Smith, 338 S.C. 465, 527 S.E.2d 758 (2000))