Can a South Carolina lawyer send a letter to former jurors after a trial, for example to ask about the lawyer's own performance?

Plain-English summary

The committee considered whether a lawyer could send a proposed letter to former jurors after a trial. It observed that, unlike the former Code of Professional Responsibility (DR 7-108(D)), the Rules of Professional Conduct say relatively little about contact with former jurors. Rule 3.5 bars seeking to influence a juror by means prohibited by law and ex parte communication except as permitted by law, but does not expressly govern routine post-trial contact.

The committee pointed to the South Carolina Supreme Court's statement in Matter of Smith that the Court looks with disfavor on officers of the court approaching jurors after a verdict, and that an attorney who approaches a juror after a verdict does so at his own peril, a holding the Court rested on Rule 8.4(e) (conduct prejudicial to the administration of justice) and on prior case law. It also noted that lawyers in federal court face the additional restrictions of Local Rule 47.05, DSC.

The committee concluded that while there was no strict ethical prohibition against contacting jurors after they had been dismissed from the venire, the practice was strongly discouraged. A letter could be construed as an attempt to curry favor with jurors so as to influence future jury service, and to the extent the lawyer sought information about the lawyer's own professional skills, such contact might be improper. The committee relied on its prior Opinions 58-02, 77-04, and 83-23 to the same effect.

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 Treat this page as historical context, not current guidance.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: Did the rules flatly prohibit contacting jurors after a trial?

A: The committee concluded no: it found no strict ethical prohibition against contacting jurors once they had been dismissed from the venire, while strongly discouraging the practice.

Q: Why did the committee discourage post-trial juror contact?

A: It explained that such a letter could be construed as an attempt to curry favor with jurors to influence future jury service, and it cited the Supreme Court's view in Matter of Smith that a lawyer approaching a juror after a verdict does so at his own peril.

Q: Could a lawyer contact a juror to learn how the lawyer performed at trial?

A: The committee concluded that, to the extent the lawyer sought information about the lawyer's own professional skills, such contact might be improper, quoting prior authority that approaching jurors normally serves no purpose other than to satisfy curiosity.

Background and rules framework

The opinion interpreted South Carolina RPC 3.5 (impartiality of the tribunal; Rule 407, SCACR) and 8.4(e) (conduct prejudicial to the administration of justice), corresponding to Model Rules 3.5 and 8.4(d), against the backdrop of the former Code's DR 7-108(D) and Local Rule 47.05, DSC, for federal practice. The committee relied on Matter of Smith, Matter of Delgado, and its prior Opinions 58-02, 77-04, and 83-23.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.5 (Rule 407, SCACR) / Model Rule 3.5: impartiality of the tribunal and communication with jurors.
• South Carolina RPC 8.4(e) / Model Rule 8.4(d): conduct prejudicial to the administration of justice.

Other rules:

• Local Rule 47.05, DSC: post-dismissal juror contact in federal practice.
• Former Code of Professional Responsibility, DR 7-108(D).

Cases:

• Matter of Smith, 338 S.C. 465, 527 S.E.2d 758 (S.C. 2000), disfavoring post-verdict juror contact.
• Matter of Delgado, 279 S.C. 293, 306 S.E.2d 591 (S.C. 1983), approaching jurors to improve trial skills.

Other opinions cited:

• S.C. Bar Ethics Advisory Ops. 58-02, 77-04, 83-23 (post-trial contact with jurors).

See also

• CBA Formal Op. 70: Post-Verdict Juror Communications
• OSB Ethics Op. 2005-143: Communicating With Jurors After Trial
• FL Bar Ethics Op. 66-47: Talking to Jurors After Trial

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-00-15/

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 00-15

Under the former Code of Professional Responsibility, lawyers were allowed to contact former jurors, provided that they not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service. DR 7-108(D). In contrast to the old Code of Professional Responsibility, the Rules of Professional Conduct are relatively silent concerning the extent of contact ethically permitted between lawyers and former jurors. Rule 3.5 states: A lawyer shall not: (a) seek to influence a... lawyer [or] member of the jury venire . . . by means prohibited by law; [or] (b) communicate ex parte with such a person except as permitted by law . . . . Rule 3.5, Rules of Professional Conduct, Rule 407, SCACR.

The South Carolina Supreme Court has recently addressed a similar issue in Matter of Smith, 338 S.C. 465, 527 S.E.2d 758 (2000). In Matter of Smith, the Court stated quite clearly that "this Court looks with disfavor upon officers of the court approaching jurors after a verdict has been written," and an attorney approaching a juror after a verdict is rendered, does so at his own peril. Id. (internal quotations omitted). Although this opinion does not specifically address Rule 3.5, it does rely on Rule 8.4(e) of the Rules of Professional Conduct, which prohibits an attorney from engaging in conduct prejudicial to the administration of justice, as well as case law that relies on the old Code of Professional Responsibility. See also John Freeman, Ethics Watch: Stay Away from Jurors, 11 S.C. Law. 10 (May/June 2000).

In addition, lawyers who practice in federal court face the additional prohibitions delineated in Local Rule 47.05, DSC, which contains many of the vestiges of the former Code of Professional Conduct. Local Rule 47.05(B) states, in pertinent part: If an attorney . . . chooses to contact a juror after such juror has been permanently dismissed and left the courthouse premises, he does so at his own peril. Under no circumstances shall an attorney . . . ask questions of or make comments to a member of that jury that are calculated to harass or embarrass a juror or to influence his actions in future jury service.

Local Rule 47.05, DSC

Although there does not appear to be a strict ethical prohibition against sending the proposed letter to former jurors, such a letter could be construed as an attempt to curry favor with jurors in an attempt to influence future jury service. To the extent that the lawyer seeks information concerning his own professional skills, such a contact may be improper. See Matter of Delgado, 279 S.C. 293, 296-97, 306 S.E.2d 591, 594 (1983) (stating that "[a]pproaching jurors normally serves no purpose other than to satisfy curiosity. The argument that counsel wishes to talk to a juror in an effort to improve his trial skills is more often an excuse and not a good reason.").

The Committee has addressed the issue of post-trial contact with jurors on three prior occasions. See Advisory Opinion 58-02 ("attempts to curry favor by fawning, flattery or pretend solicitude for their personal comfort are unprofessional."); Advisory Opinion 77-04 (post-trial contact with jurors "takes on the air of trying to incur favors from jurors in the future."); Advisory Opinion 83-23 ("an attorney in South Carolina would be unwise to contact a juror after the conclusion of the trial unless he has secured permission of the trial court to do so."). Based on the above case law, local federal rules, and our prior opinions, it is the opinion of the Committee that, while there is no strict ethical prohibition against contacting jurors after they have been dismissed from the jury venire, such a practice is strongly discouraged.