Can the winning lawyer write the jurors after a verdict telling them no misconduct occurred and to refuse to talk to the other side's investigator?

Plain-English summary

The inquiry asked whether it violated the Canons for the successful attorney in a jury case to write each juror a letter that complimented the jury, advised them the defendant's insurance carrier would probably call on them to try to prove that certain enumerated matters considered by the jury constituted misconduct, assured them nothing of the sort occurred, and advised them to refuse to talk to the defendant's representative if he called.

The committee agreed the letter violated one or more Canons of both the State Bar of Texas and the American Bar Association, though it divided on which: two members cited ABA Canon 22 and Texas Canon 19; five cited ABA Canon 39 and Texas Canon 36 (not 22/19); and one member also cited Goldstein Hat Mfg. Co. v. Cowen. Despite the disagreement on the particular Canon, all members agreed the letter was improper, that it curried favor with the jury, that it was intended to deny the adversary a fair opportunity to learn what took place in the jury room, and that it attempted to induce the jurors to suppress or deviate from the truth or to affect their free and untrammeled conduct. The vote was 7-0.

Currency note

This opinion was issued in 1950, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; a lawyer's communication with jurors and fairness to the opposing party are now addressed by ABA Model Rules 3.5 and 3.4. Treat this page as historical context, not current guidance.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 the winning lawyer write jurors to thank them and reassure them after the verdict?

A: Not in the form here. The committee held (7-0) that the letter was improper because it curried favor and, by telling jurors to refuse to talk to the defendant's representative, tried to deny the adversary a fair chance to learn what happened in the jury room.

Q: What made the letter especially objectionable?

A: The committee found it was intended to induce the jurors to suppress or deviate from the truth and to affect their free and untrammeled conduct, in addition to obstructing the other side's post-verdict inquiry.

Q: Did the committee agree on which Canon was violated?

A: No. Members split between ABA Canon 22 / Texas Canon 19 and ABA Canon 39 / Texas Canon 36, but all agreed the letter was improper.

Background and rules framework

The opinion interprets former Texas Canons 20 and 36 and ABA Canons 22 and 39 (the trial-publicity and juror-contact provisions), applied to a lawyer's post-verdict communication with jurors. The modern analogs are ABA Model Rule 3.5 (impartiality and decorum of the tribunal, including communications with jurors) and Model Rule 3.4 (fairness to the opposing party and counsel).

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality of the tribunal; communication with jurors), as the modern analog
• MR 3.4 (fairness to opposing party and counsel), as the modern analog
• Texas Canons 20 and 36, ABA Canons 22 and 39

Cases:

• Goldstein Hat Mft. Co. v. Cowen, 136 S.W. (2) 867, at page 875 (cited by one member)

See also

• TX Ethics Op. 33: Withholding a Pregnancy From the Divorce Court
• TX Ethics Op. 47: Conflicts of Interest in a Will-Interpretation Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-26/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_26.pdf

Original opinion text

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

QUESTION PRESENTED

Is it a violation of the Texas Canons of Ethics for the successful attorney in a jury case to write a letter to each of the members of the jury in which he complimented the jury, advised them that the "Insurance carrier" for the defendant would probably call upon them in an effort to prove by them that certain matters, enumerating them, were considered by the jury which would constitute misconduct, assured them that nothing of the sort occurred, and advised the jurors to refuse to talk to such representative if he did call upon them?

18 Baylor L. Rev. 207 (1966)

WITNESSES - JURORS - LETTERS
A letter by the successful attorney in a jury case to the jurors, complimenting them, assuring them that none of the matters they considered constituted misconduct, and advising them to refuse to talk to defendant's representative should he call upon them, is improper.

Canons 20, 36. A.B.A. Canon 39.

The committee is of the opinion that the action of the attorney in mailing such a letter to the jurors was a violation of one, or more, of the Canons of both the American Bar Association and the State Bar of Texas. Two members were of the opinion that this action violated American Bar Association Canon 22 and Texas Bar Canon 19. Five members of the committee were of the opinion such action did not violate American Bar Association Canon 22 and Texas Bar Canon 19, but did violate American Bar Association Canon 39 and Texas Bar Canon 36. One member of the committee, in addition to expressing the opinion that this letter violated American Bar Association Canon 39 and Texas Bar Canon 36, cited the case of Goldstein Hat Mft. Co. v. Cowen, 136 S.W. (2) 867, at page 875.

While, as indicated above, there was some difference of opinion as to the particular canon violated, all of the members were definitely of the opinion that the writing of such a letter to the jury was improper conduct, fawned upon and attempted to curry favor with the jury, and was intended to deny to his adversary a fair opportunity to ascertain the true facts as to what took place in the jury room. Also, that it constituted an attempt to induce the jurors to suppress or deviate from the truth, or to affect their free and untrammeled conduct. (7-0)

Tex. Comm. On Professional Ethics, Op. 26 (1950)