Can a lawyer buy the results of a service that phones prospective jurors from the venire list before the term of court?

Plain-English summary

A service proposed to telephone prospective jurors from the venire list several weeks before the term of court, asking standard questionnaire questions (similar to the federal court's) and disclosing that responses were voluntary, then to sell the gathered information to any attorney who requested it. The committee was asked whether an attorney could make use of such a service.

The committee concluded an attorney may not, without court approval, use or cause the use of any private service that contacts a venire member before jury service is completed. It applied Rule 3.5, which bars a lawyer from seeking to influence a juror or venire member by means prohibited by law, communicating ex parte with such a person except as permitted by law, or disrupting a tribunal. The committee surveyed the consequences of pretrial juror investigation, including In re Warlick (a lawyer disbarred after using an investigator to question prospective jurors, with the partner who prepared the questions reprimanded) and authority that even mere contact or socializing with jurors may be misconduct. It noted that contact with jurors' family members is not directly proscribed by Rule 3.5 but would likely be judged under Rule 8.4(e) (conduct prejudicial to the administration of justice). Critically, it stressed that an attorney cannot avoid the rule by using agents to communicate improperly with jurors, and a lawyer may be held responsible for a third party's improper contact if the lawyer was aware of it or assisted in it.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 an attorney use a service that phones venire members before the term of court?

A: The committee concluded no, not without court approval, because Rule 3.5 bars improper ex parte contact with jurors and venire members.

Q: Does it matter that a third-party service, not the lawyer, makes the calls?

A: No. The committee stressed that a lawyer cannot avoid the rule by using agents, and may be responsible for a third party's improper juror contact if aware of or assisting it.

Q: What about contacting jurors' family members?

A: The committee said that is not directly proscribed by Rule 3.5, but its propriety would likely be judged under Rule 8.4(e), conduct prejudicial to the administration of justice.

Background and rules framework

The opinion applied Rule 3.5 (impartiality and decorum of the tribunal; no improper influence of or ex parte communication with jurors and venire members) and Rule 8.4(e) (conduct prejudicial to the administration of justice), reinforced by disciplinary case law. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.5 / Model Rule 3.5: improper influence of or ex parte communication with jurors and venire members.
• South Carolina RPC 8.4 / Model Rule 8.4: conduct prejudicial to the administration of justice (Rule 8.4(e)).

Cases:

• In re Warlick, 239 S.E.2d 110 (S.C. 1985); U.S. v. Warlick, 742 F.2d 113 (4th Cir. 1983), lawyer disbarred for investigating prospective jurors.
• In re Rivers, 331 S.E.2d 332, partner reprimanded for preparing the questions.
• In re Holman, 286 S.E.2d 148 (1982), communicating with a juror during trial prohibited.
• Omaha Bank v. Siouxland Cattle Cooperative, 305 N.W.2d 458 (Iowa 1981); In re Logan, 358 A.2d 787 (N.J. 1976), agents cannot be used to make improper juror contact.

See also

• SC Bar Ethics Op. 94-25: Contacting a Corporate Opponent's Employees
• SC Bar Ethics Op. 93-36: Paying a Witness More Than the Statutory Fee

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-27/

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 93-27

A service would contact by telephone prospective jurors from the venire list several weeks prior to the term of court. Questions would be from a standard questionnaire similar to that used in the Federal District Court. The questionnaire discloses that the jurors' responses are voluntary and that they are not required to participate.

Question:
Whether an attorney could make use of a service where a business telephones members of a prospective venire prior to the term of court and asks a series of standard questions. The information gathered would be made available for a fee to all attorneys who request it.

Summary:
An attorney may not without court approval use or cause to use any private service which contacts a venire member prior to the completion of jury service.

Opinion:
Rule 3.5 provides that "A lawyer shall not: a) Seek to influence ... a juror, member of the jury venire or other official by means prohibited by law; b) Communicate ex parte with such a person except as permitted by law; c) Engage in conduct intended to disrupt a tribunal...".

The pretrial investigation of potential jurors can meet with disastrous consequences. In In Re Warlick 239 S. E. 2d 110 (S. C. 1985), a lawyer hired a private investigator to question prospective jurors and families, using the information to select members of a panel. The Federal Court convicted the lawyer of contempt for obstructing the administration of justice noting the contacts were clearly prohibited under DR 7-108(a). U. S. v. Warlick 742 F. 2d 113 (4th Cir. 1983). The SC Supreme Court then disbarred the lawyer. The partner was reprimanded for preparing the questions for the investigator in reliance on the senior lawyer's assurance that the process was ethical, In Re Rivers 331 S. E. 2d 332. Communicating with a juror during trial is clearly prohibited, In Re Holman 286 S. E. 2d 148 (1982).

The courts will examine the facts surrounding the contact with jurors; mere contact or socializing despite lack of ulterior motive may constitute misconduct. Omaha Bank v. Siouxland Cattle Cooperative 305 N. W. 2d 458 (Iowa 1981); In Re Terry 394 N. E. 2d 94 (Ind. 1979). Contact with family members of jurors is not proscribed under Rule 3.5. The propriety of such conduct, however, is likely to be judged under the standard of Rule 8.4 (e) "Engage in conduct that is prejudicial to the administration of justice". In Re Two Anonymous Members of the South Carolina Bar 298 S. E. 2d 450 (S. C. 1982). Attorneys cannot avoid the proscription of the rule by using agents to communicate improperly with jurors. Omaha Bank v. Siouxland Cattle Cooperative, supra. Even though it is a third party not the lawyer who would establish the improper contact with a juror, the lawyer may be held responsible if the lawyer was aware of the contact or assisted the client in doing so. In Re Logan 358 A. 2d 787 (N. J. 1976).