Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 216

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.