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 00-14
Lawyer, in an effort to learn more about prospective jurors, wishes to retain an investigator to make visual observations of prospective jurors' homes and cars. Lawyer does not intend that either he or the investigator retained will make any contact with the prospective jurors who are being observed.
QUESTION:
Would it be an ethical violation for lawyer to retain an investigator to make visual observations of prospective jurors'homes and cars without making any contact with the prospective jurors?
OPINION:
Several of the Rules of Professional Conduct are applicable to lawyer contact or communication with a juror or prospective juror. Rule 3.5 provides in relevant part that a Alawyer shall not: (a) [s]eek to influence a . . . juror [or] member of the jury venire . . . by means prohibited by law; [or] (b) [c]ommunicate ex parte with such a person except as permitted by law . . . . Additionally, under Rule 4.4, a lawyer shall not use means to embarrass a third person in the representation of his/her client. Finally, it is considered to be professional misconduct under Rule 8.4(e) for a lawyer to A[e]ngage in conduct that is prejudicial to the administration of justice.
In response to an inquiry on a related matter, this Committee in Advisory Opinion 93-27 found that absent court approval, Rule 3.5 would prohibit an attorney's use of a service to telephone members of a prospective venire to ask standard questions. In its discussion, the Committee warned that A[t]he pretrial investigation of potential jurors can meet with disastrous consequences and cautioned that Amere contact or socializing despite lack of ulterior motive may constitute misconduct. The Committee's warning is just as appropriate to the present inquiry.
The present inquirer seeks to avoid prohibited communication by having the hired investigator merely observe the prospective juror's house and/or car without making personal contact. Technically, a visual observation of a prospective juror's home and/or car should not constitute an ethical violation provided that (1) absolutely no contact is made with the prospective juror or his/her family and (2) the observation is conducted in a manner that does not cause embarrassment to the prospective juror.
That said, the Committee strongly cautions the inquirer that the risks of the proposed conduct may very well outweigh the limited information that could be obtained from such an observation. First, there is a danger of unintentional contact between the investigator and the prospective juror. Second, there is a danger that the observation may be conducted in such a manner that the prospective juror becomes aware of it and/or the observation becomes harassing or embarrassing. The fact that a third party conducts the investigation does not relieve the lawyer from his/her responsibility in the event the investigation results in improper contact with a prospective juror. To paraphrase the South Carolina Supreme Court, an attorney who engages in such conduct, "does so at his own peril." In the Matter of Delgado, 279 S.C. 293, 296-97, 306 S.E.2d 591, 594 (1983) (quoted in In the Matter of Smith, 338 S.C. 465, 527 S.E.2d 758 (2000))