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 00-15
Under the former Code of Professional Responsibility, lawyers were allowed to contact former jurors, provided that they not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service. DR 7-108(D). In contrast to the old Code of Professional Responsibility, the Rules of Professional Conduct are relatively silent concerning the extent of contact ethically permitted between lawyers and former jurors. Rule 3.5 states: A lawyer shall not: (a) seek to influence a... lawyer [or] member of the jury venire . . . by means prohibited by law; [or] (b) communicate ex parte with such a person except as permitted by law . . . . Rule 3.5, Rules of Professional Conduct, Rule 407, SCACR.
The South Carolina Supreme Court has recently addressed a similar issue in Matter of Smith, 338 S.C. 465, 527 S.E.2d 758 (2000). In Matter of Smith, the Court stated quite clearly that Athis Court looks with disfavor upon officers of the court approaching jurors after a verdict has been written, and an attorney approaching a juror after a verdict is rendered, does so at his own peril. Id. (internal quotations omitted). Although this opinion does not specifically address Rule 3.5, it does rely on Rule 8.4(e) of the Rules of Professional Conduct, which prohibits an attorney from engaging in conduct prejudicial to the administration of justice, as well as case law that relies on the old Code of Professional Responsibility. See also John Freeman, Ethics Watch: Stay Away from Jurors, 11 S.C. Law. 10 (May/June 2000).
In addition, lawyers who practice in federal court face the additional prohibitions delineated in Local Rule 47.05, DSC, which contains many of the vestiges of the former Code of Professional Conduct. Local Rule 47.05(B) states, in pertinent part: If an attorney . . . chooses to contact a juror after such juror has been permanently dismissed and left the courthouse premises, he does so at his own peril. Under no circumstances shall an attorney . . . ask questions of or make comments to a member of that jury that are calculated to harass or embarrass a juror or to influence his actions in future jury service.
Local Rule 47.05, DSC
Although there does not appear to be a strict ethical prohibition against sending the proposed letter to former jurors, such a letter could be construed as an attempt to curry favor with jurors in an attempt to influence future jury service. To the extent that the lawyer seeks information concerning his own professional skills, such a contact may be improper. See Matter of Delgado, 279 S.C. 293, 296-97, 306 S.E.2d 591, 594 (1983) (stating that A[a]pproaching jurors normally serves no purpose other than to satisfy curiosity. The argument that counsel wishes to talk to a juror in an effort to improve his trial skills is more often an excuse and not a good reason.).
The Committee has addressed the issue of post-trial contact with jurors on three prior occasions. See Advisory Opinion 58-02 (Aattempts to curry favor by fawning, flattery or pretend solicitude for their personal comfort are unprofessional.; Advisory Opinion 77-04 (post-trial contact with jurors Atakes on the air of trying to incur favors from jurors in the future.); Advisory Opinion 83-23 (Aan attorney in South Carolina would be unwise to contact a juror after the conclusion of the trial unless he has secured permission of the trial court to do so.). Based on the above case law, local federal rules, and our prior opinions, it is the opinion of the Committee that, while there is no strict ethical prohibition against contacting jurors after they have been dismissed from the jury venire, such a practice is strongly discouraged.