Must a lawyer get a hearing before the trial judge before interviewing a juror after filing notice of intent to do so?

Plain-English summary

An inquiring attorney sought review of Florida Opinion 69-17, focusing on its requirement that a notice of intention to interview a juror include "some appropriate statement of the basis for the challenge of the jury verdict." The inquirer thought that language was not restrictive enough and wanted to require a hearing before the trial judge, with a ruling, before any contact with a juror.

The committee declined to recede from Opinion 69-17. It reasoned that when the Supreme Court adopted the Code of Professional Responsibility, it specifically amended the ABA versions of EC 7-29 and DR 7-108(D) to incorporate the identical language of the old Florida Canon 23. As adopted, those provisions simply did not require a hearing. The opinion carries an editorial note that hearings prior to post-trial contacts with jurors 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 context.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 7-29 and DR 7-108(D)); juror contact is now addressed by Rule 4-3.5, and post-trial juror interviews in civil cases are governed by Florida Rule of Civil Procedure 1.431(h). Treat this page as historical context, not current guidance. Verify against the current rules and procedural rules before relying on any specific requirement mentioned here.

Common questions

Q: Did a lawyer need a hearing before interviewing a juror after trial?

A: Under this opinion, no. The committee held the Code did not require a hearing before the trial judge once a notice of intention to interview had been filed.

Q: Why did the committee refuse to add a hearing requirement?

A: It reasoned that Florida had adopted EC 7-29 and DR 7-108(D) using the language of the old Florida Canon 23, and that those provisions as adopted did not call for a hearing.

Background and rules framework

The opinion interpreted EC 7-29 and DR 7-108(D) of the former Code of Professional Responsibility, which governed communication with and investigation of jurors. Juror contact is now addressed by Rule 4-3.5 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 3.5. The opinion's note ties the procedural side to Florida Rule of Civil Procedure 1.431(h).

Citations and references

Rules of Professional Conduct:

• EC 7-29; DR 7-108(D) [Code of Professional Responsibility]

Procedural rules:

• Florida Rule of Civil Procedure 1.431(h) [per the opinion's editorial note]

Cases:

• Roland v. State, 584 So.2d 68 (Fla. 1st DCA 1991), post-trial juror contact in criminal cases [per the opinion's editorial note]

Other opinions cited:

• Florida Opinion 69-17: notice of intention to interview a juror

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-45/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-45-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-45
December 3, 1970
Advisory ethics opinions are not binding.
Code of Professional Responsibility does not require a hearing before the trial judge after notice of intention to interview juror has been filed.
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).
CPR: EC 7-29; DR 7-108(D)
Opinion: 69-17
Chairman Massey stated the opinion of the committee:
An inquiring attorney seeks a review of Florida Opinion 69-17, directing his question to that part requiring "some appropriate statement of the basis for the challenge of the jury verdict be placed in the notice," believing the verbiage contained in 69-17 not to be sufficiently restrictive. In essence, the inquirer seeks to have a hearing before the trial judge after notice of intention to interview and ruling thereon prior to contact with a juror.
The Committee declines to recede from Florida Opinion 69-17. When the Supreme Court adopted the Code of Professional Responsibility, it specifically amended EC 7-29 and DR 7-108(D) of the ABA version to incorporate the identical language of old Canon 23 as it existed in Florida. As adopted, the identified provisions of the CPR simply do not require a hearing.