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 93-27
A service would contact by telephone prospective jurors from the venire list several weeks prior to the term of court. Questions would be from a standard questionnaire similar to that used in the Federal District Court. The questionnaire discloses that the jurors' responses are voluntary and that they are not required to participate.
Question:
Whether an attorney could make use of a service where a business telephones members of a prospective venire prior to the term of court and asks a series of standard questions. The information gathered would be made available for a fee to all attorneys who request it.
Summary:
An attorney may not without court approval use or cause to use any private service which contacts a venire member prior to the completion of jury service.
Opinion:
Rule 3.5 provides that "A lawyer shall not: a) Seek to influence ... a juror, member of the jury venire or other official by means prohibited by law; b) Communicate ex parte with such a person except as permitted by law; c) Engage in conduct intended to disrupt a tribunal...".
The pretrial investigation of potential jurors can meet with disastrous consequences. In In Re Warlick 239 S. E. 2d 110 (S. C. 1985), a lawyer hired a private investigator to question prospective jurors and families, using the information to select members of a panel. The Federal Court convicted the lawyer of contempt for obstructing the administration of justice noting the contacts were clearly prohibited under DR 7-108(a). U. S. v. Warlick 742 F. 2d 113 (4th Cir. 1983). The SC Supreme Court then disbarred the lawyer. The partner was reprimanded for preparing the questions for the investigator in reliance on the senior lawyer's assurance that the process was ethical, In Re Rivers 331 S. E. 2d 332. Communicating with a juror during trial is clearly prohibited, In Re Holman 286 S. E. 2d 148 (1982).
The courts will examine the facts surrounding the contact with jurors; mere contact or socializing despite lack of ulterior motive may constitute misconduct. Omaha Bank v. Siouxland Cattle Cooperative 305 N. W. 2d 458 (Iowa 1981); In Re Terry 394 N. E. 2d 94 (Ind. 1979). Contact with family members of jurors is not proscribed under Rule 3.5. The propriety of such conduct, however, is likely to be judged under the standard of Rule 8.4 (e) "Engage in conduct that is prejudicial to the administration of justice". In Re Two Anonymous Members of the South Carolina Bar 298 S. E. 2d 450 (S. C. 1982). Attorneys cannot avoid the proscription of the rule by using agents to communicate improperly with jurors. Omaha Bank v. Siouxland Cattle Cooperative, supra. Even though it is a third party not the lawyer who would establish the improper contact with a juror, the lawyer may be held responsible if the lawyer was aware of the contact or assisted the client in doing so. In Re Logan 358 A. 2d 787 (N. J. 1976).