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OBA Ethics Counsel

Ethics Opinion No. 248

Adopted May 11, 1967

INQUIRY

An Oklahoma District Judge has requested that this committee render an Opinion as to whether or not an attorney, after a jury has rendered its verdict, may ethically contact a member or members of the jury, and inquire of them whether or not the members of the jury rendering the verdict would like for the defendant's sentence to be suspended.

1. ATTITUDE TOWARD JURY--Canon 23, among other things, provides that:

"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."

In Opinion Number 109, the Committee on Professional Ethics of the American Bar Association held:

"A lawyer ethically has no right, after verdict, to seek out one or more members of a jury before whom he has tried a case and question them how certain aspects of the case impressed them, what they thought of certain questions, even assuming that the lawyer did so for the purpose of informing himself as to any mistakes he may have made in the presentation of evidence or of testing his judgment in selecting members of the panel."

Opinion Number 109 concludes with the following statement:

"This opinion, of course, 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 clients 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."

This exception is clearly intended to apply to those cases where there have been irregularities in procedure by a jury which affect the validity of the verdict rendered, and not to cases where an attorney wishes merely to satisfy his curiosity in matters which in no way affect the validity of the verdict.

On October 6, 1952, the Standing Committee on Professional Ethics of the American Bar Association, in Informal Opinion Number 535, in interpreting Canon Number 23, said:

"Our Committee entertains the opinion, however, that after the trial, as a matter of self-education, or where necessary to prevent fraud or a miscarriage of justice, the lawyer may, with entire propriety, interview the jurors."

This Committee feels that the above cited Informal Opinion is too broad and conflicts with all other authorities which we have found. We therefore hold that a lawyer may not with propriety interview the jurors as a matter of self-education. This holding is in direct conflict with a portion of the above cited Opinion and we hold the Opinion to be correct in all other respects.

In the case of Rakes v. United States, 169 F.2d 739, 745_746, the United States Court of Appeals for the 4th Circuit said:

"... jurors are not to be harassed in any manner because of a verdict they have rendered. If jurors are conscious that they will be subjected to interrogation or searching hostile inquiry as to what occurred in the jury room and why, they are almost inescapably influenced to some extent by that anticipated annoyance. The courts will not permit that potential influence to invade the jury room. He who makes studied inquiries of jurors as to what occurred there acts at his peril, lest he be held as acting in obstruction of the administration of justice... a searching or pointed examination of jurors in behalf of a party to a trial is to be emphatically condemned. It is incumbent upon the courts to protect jurors from it."

In Northern Pacific Railway Company v. Mely, 219 F.2d 199, the United States Court of Appeals for the Ninth Circuit said:

"... The Common Law Judges placed the veil of secrecy about jury deliberations ... Many courts hold that it is unethical for counsel to communicate with former jurors to discover how they stood in a particular case ...."

Likewise, in McDonald v. Pless, 238 U.S. 264, 267_268, 35 S.Ct. 783, 784, 59 L.Ed. 1300, with reference to counsel contacting jurors after verdict said:

"* * * the result would be to make what was intended to be a private deliberation, the constant subject of public investigation--to the destruction of all frankness and freedom of discussion and conference."

Many times the Committee on Professional Ethics of the American Bar Association have pointed out that a lawyer like Caesar's wife, should be above suspicion. See Opinions 37, 39, 49, 71, 77, and 83.

This Committee, in Advisory Opinion No. 216 of the Legal Ethics Committee of the Oklahoma Bar Association dated December 14, 1961, held that it was both improper to write jurors following a jury term complimenting them on their service during the term, and to thank a juror or jurors for their verdict. In Syllabus 3 we stated:

"It is unethical for an attorney to interrogate a juror after discharge about the deliberation even if such interrogation is for sincere purpose of ascertaining effect of certain evidence or tactics on the jury, although interrogation is permitted in the protection of interests of the client and to prevent a miscarriage of justice."

and we stated in the body of our Opinion that it is a violation of Canon 23 to interrogate a juror after discharge for any purpose other than to prevent a miscarriage of justice or to determine whether or not a juror has been guilty of fraud.

The Code of Trial Conduct of the American College of Trial Lawyers, in Rule 19 (c) provides as follows:

"Subject to any limitations imposed by law it is a lawyer's right, after the jury has been discharged, to interview the jurors to determine whether their verdict is subject to any legal challenge. The scope of the interview should be restricted and caution should be used to avoid embarrassment to any juror or to influence his action in any subsequent jury service."

Thus it will be seen that the rules of the American College of Trial Lawyers, are in complete agreement with Opinion Number 109 of the Committee on Legal Ethics of the American Bar Association. Both, in conjunction with numerous court opinions, restrict the right to interview jurors after verdict.

Since the inquiry which is the subject of this opinion, in no way appears to be aimed at matters affecting the validity of the verdict, it indeed appears entirely out of the province of the jury, it is the opinion of this Committee that it is unethical for a lawyer to inquire of a jury after verdict on matters affecting other than the question of the validity of the verdict involved.