Can a lawyer contact a juror after the jury is discharged to investigate a possible challenge to the verdict?

Plain-English summary

A lawyer posed three questions about Canon 23 as amended by the Florida Supreme Court in In re: Canons of Ethics, 186 So.2d 509 (Fla. 1966): whether he could contact a discharged juror in any manner before filing the written "Notice of Intention to Interview"; whether the notice had to state the reasons he believed a ground for challenging the verdict existed; and whether, after filing the notice, he could interview the juror before any hearing was set, with notice to opposing counsel.

The committee repeated the caution from its earlier Opinion 66-47 that the Canon had received little judicial interpretation and none from the Florida Supreme Court. It then answered: first, because the Canon appears all-encompassing, a lawyer should not contact a juror for any purpose before filing the required notice, subject to the casual and noninvited contacts discussed in 66-47; second, with two members dissenting, that the amendment's intent was clear enough to require some appropriate statement of the basis for challenging the verdict in the notice; and third, that the Canon requires only that the notice be filed, not that a hearing be held before the interview. The bar's published text adds a note that post-trial juror contacts in civil cases are now governed by Florida Rule of Civil Procedure 1.431(h), and points to Roland v. State, 584 So.2d 68 (Fla. 1st DCA 1991), for the criminal-case discussion.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 23 on contact with discharged jurors. Communication with jurors is now addressed by Rule 4-3.5, and the bar's own note observes that post-trial juror contact in civil cases is governed by Florida Rule of Civil Procedure 1.431(h). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer talk to a juror after the jury is discharged?

A: Under this opinion, not for any purpose before filing the required notice. The committee read the Canon as all-encompassing, subject only to the casual and noninvited contacts discussed in its Opinion 66-47.

Q: Does the notice have to say why the lawyer wants to interview the juror?

A: Yes, in the committee's view. With two members dissenting, it concluded the notice must include some appropriate statement of the basis for challenging the verdict.

Q: Must a court hold a hearing before the interview takes place?

A: No. The committee found the Canon requires only that the notice be filed, not that a hearing precede the interview.

Background and rules framework

The opinion applied the former Canon 23, as amended by the Florida Supreme Court in In re: Canons of Ethics, 186 So.2d 509 (Fla. 1966), governing a lawyer's contact with jurors after their discharge. Communication with jurors is now addressed by Rule 4-3.5 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 3.5. The bar's published note adds that civil post-trial juror contacts are governed by Florida Rule of Civil Procedure 1.431(h).

Citations and references

Rules of Professional Conduct:

• Canon 23 [Code of Professional Responsibility; juror contact now in Rule 4-3.5]

Cases:

• In re: Canons of Ethics, 186 So.2d 509 (Fla. 1966), amending Canon 23 on post-discharge juror contact
• Roland v. State, 584 So.2d 68 (Fla. 1st DCA 1991), cited in the bar's note for criminal-case juror contact

Other opinions cited:

• Florida Opinion 66-47

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-17/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-17-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 69-17
May 23, 1969
Advisory ethics opinions are not binding.
A lawyer should not contact a juror after the discharge of the jury for any purpose before filing notice with the court. Some appropriate statement of the basis for challenge of the verdict should be included in this notice.
Note: Hearings prior to post-trial contacts with jurors in civil cases are governed by Florida Rule of Civil Procedure 1.431(h). For a discussion of this issue in criminal cases, see Roland v. State, 584 So.2d 68 (Fla. 1st DCA 1991).
Canon: 23
Opinion: 66-47
Case: In re: Canons of Ethics, 186 So.2d 509 (Fla. 1966)
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar makes the following inquiries concerning Canon 23 as amended by the Supreme Court of Florida, 186 So.2d 509 (Fla. 1966):

1. May I contact a juror, after the jury has been discharged, in any manner and for any reason, prior to filing the written "Notice of Intention to Interview?"
2. Must the written notice of intention to interview set forth the reason or reasons why I believe that ground for challenge of the verdict may exist?
3. After filing the written notice of intention to interview, may I proceed to discuss the case with the juror before a hearing is set on the written notice before the trial judgment, with notice to opposing counsel?
   We sound again the warning which we sounded in our Opinion 66-47 that this Canon has apparently received but sparse judicial interpretation, and most importantly, none by the Supreme Court of Florida; we do this in view of the fact that the language added to the proposal of The Florida Bar (more particularly discussed in 66-47) is the focal point of the instant questions. With this reminder, we answer the questions as follows:
4. In light of the fact that the Canon seems to be all-encompassing, we do not think that a lawyer should contact a juror after the jury has been discharged for any purpose before filing the notice required by the Canon, subject, of course, to the possibility of casual and noninvited contacts considered in our 66-47.
5. Two members dissenting, the Committee feels that the intent of the amendment to the Canon is at least sufficiently clear to require that some appropriate statement of the basis for the challenge of the jury verdict be placed in the notice. Accordingly, we answer the second question in the affirmative.
6. We find no requirement in the Canon that a hearing be held before the interview, but only that the notice be filed, and we therefore answer the third question in the negative.