Can a Mississippi lawyer investigate prospective jurors by sending a mass mailing to people in the trial county before trial?

Plain-English summary

The Committee addressed a plaintiff's lawyer in a civil trial (where liability was admitted and only damages remained) who prepared a form letter describing his client's injury favorably, referring to the defendant's liability insurance, and stating that the insurance company's attorneys had admitted liability. The lawyer attached the list of the venire and asked recipients to identify which veniremen would return a verdict favorable to his client. Using a computerized address list, he mailed over seventy of these letters to people in the trial county weeks before trial.

The opinion applied Rule 3.5, which bars a lawyer from seeking to influence a juror or prospective juror by means prohibited by law, communicating ex parte with such a person except as permitted by law, or engaging in conduct intended to disrupt a tribunal. It noted Rule 3.6(a) on trial publicity, which prohibits an extrajudicial statement a reasonable person would expect to be publicly disseminated when the lawyer knows or should know it has a substantial likelihood of materially prejudicing an adjudicative proceeding, and Rule 3.6(b)(5), which treats a statement about information likely inadmissible as evidence as creating that risk.

The opinion concluded the proposed practice is ethically prohibited, citing Rule 8.4(d) (conduct prejudicial to the administration of justice). It reasoned that a mass mailing of a form letter, even to clients or former clients, is a public communication with a substantial likelihood of materially prejudicing a trial; the lawyer has little control over so large a group, and the risk is increased by disseminating inadmissible information such as the existence of liability insurance. The opinion added that it does not preclude a lawyer from obtaining information about prospective jurors before trial, but those efforts should not be conducted in a mass or public manner, and a lawyer (or anyone acting for the lawyer) investigating prospective jurors should act with circumspection and restraint, citing Rule 3.6(c).

In practice

Under this opinion, investigating prospective jurors by a mass or public mailing is prohibited, particularly where the mailing spreads facts that would be inadmissible at trial (such as the existence of liability insurance) or otherwise risks prejudicing an impartial trial. Per the opinion, the analysis turns on the public and uncontrolled nature of the communication and the dissemination of inadmissible information, which together create a substantial likelihood of materially prejudicing the proceeding under Rules 3.5, 3.6, and 8.4(d).

The opinion does not bar a lawyer from gathering information about prospective jurors before trial. It holds that such efforts must not be carried out in a mass or public manner, and that the lawyer or anyone acting on the lawyer's behalf should proceed with circumspection and restraint.

Common questions

Q: Can a lawyer mail letters to people in the trial county to find out which jurors would favor the lawyer's client?

A: No. The opinion concluded that investigating prospective jurors through a mass or public mailing is ethically prohibited, because it is a public communication with a substantial likelihood of materially prejudicing the trial.

Q: Does it matter that the mailing went to the lawyer's own clients or former clients?

A: No. The opinion concluded the practice is prohibited even if the recipients include clients or former clients, because the lawyer has little or no control over such a large group's subsequent conduct.

Q: Why was the reference to liability insurance a problem?

A: The opinion reasoned that disseminating information likely to be inadmissible at trial, such as the existence of liability insurance, increases the risk of prejudicing an impartial trial, which Rule 3.6 identifies as a basis for finding a substantial likelihood of material prejudice.

Q: Can a lawyer ever investigate prospective jurors?

A: Yes, but not in a mass or public manner. The opinion states that obtaining information about prospective jurors before trial is not precluded, provided the lawyer or anyone acting on the lawyer's behalf acts with circumspection and restraint.

Background and rules framework

The opinion interprets Mississippi Rule 3.5 (impartiality of the tribunal; improper influence on jurors), Rule 3.6 (trial publicity), and Rule 8.4(d) (conduct prejudicial to the administration of justice), corresponding to Model Rules 3.5, 3.6, and 8.4. It read Rule 3.6(b)(5) to treat statements about likely-inadmissible information as carrying a substantial likelihood of material prejudice, and applied Rule 8.4(d) to the mass mailing as a whole.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 3.5 (impartiality of the tribunal; improper influence on jurors) (cf. Model Rule 3.5).
• MRPC 3.6 (trial publicity), including 3.6(a), 3.6(b)(5), and 3.6(c) (cf. Model Rule 3.6).
• MRPC 8.4(d) (conduct prejudicial to the administration of justice) (cf. Model Rule 8.4).

See also

• MS Bar Ethics Op. 161: Disclosing a Mary Carter Agreement
• MS Bar Ethics Op. 7: Currying Favor With Juries
• MS Bar Ethics Op. 168: Publicizing a Verdict in the Newspaper

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/160/
• Original PDF: https://www.msbar.org/media/1045/et_op_160-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 160

OF THE MISSISSIPPI BAR

RENDERED March 17, 1989

AMENDED April 06, 2013

INVESTIGATION OF PROSPECTIVE JURORS - An investigation of prospective jurors may not include a mass or public mailing, particularly one that disseminates information about the case which would be inadmissible at trial or which otherwise would increase the risk of prejudicing an impartial trial.

The Ethics Committee of The Mississippi Bar has been asked to render an opinion on the following matter:

In a jury trial in circuit court in County "X", Lawyer "A" represents an injured plaintiff. The defense has admitted liability. The only question remaining is the amount of damages due to the plaintiff.

Lawyer "A" prepares a form letter, stating his client's injury in a light most favorable to his case. He refers to liability insurance in the letter and states that the insurance company's attorneys have admitted liability. He attaches a list of the venire to the letter. He states in the letter that he wants the recipient to review the names of the veniremen on the list of veniremen and reply to Lawyer "A", informing Lawyer "A" of the identity of the people on the list who will return a verdict sufficient to compensate Lawyer "A"'s client for the injuries sustained, as favorably described by him.

Using a computerized list of addressees, lawyer "A" mails out over seventy of these letters, with the attached list of the veniremen, to people in county "X" where the trial will be held, a few weeks before the trial is set to begin.

We would appreciate the Ethics Committee's view about the propriety of such mailings which:

l) publish the facts of an upcoming civil trial in a light favorable to one party, or which,

2) publish evidence inadmissible at trial, such as the existence of liability insurance, or which,

3) solicit the identity of jurors who will be sympathetic to one party as opposed to the other, as opposed to being fair and impartial.

Would the Ethics Committee's view about the propriety of such mailings differ, if the letters were mailed to over seventy present or former clients of Lawyer "A"?

To address this inquiry we first turn to Rule 3.5 of the Mississippi Rules of Professional Conduct which states:

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person except as permitted by law; or

(c) engage in conduct intended to disrupt a tribunal.

The purpose of this rule is to prevent improper influence upon a tribunal and to assure the professional integrity of judicial proceedings.

Additionally, we note that Rule 3.6(a) on trial publicity prohibits a lawyer from making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Furthermore, paragraph (b)(5) of Rule 3.6 observes that such a statement is likely to have such an effect when it relates to information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

It is the opinion of the Ethics Committee that the proposed practice as described above is ethically prohibited. See Rule 8.4(d) which states it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Such a mass mailing of a form letter, even if the recipients include clients or former clients, is a public communication that has a substantial likelihood of materially prejudicing a trial. The lawyer has little or no control over the subsequent conduct of such a large group; thus, there is no assurance that the members of the group will know, or abide by, the restrictions imposed upon the lawyer. Furthermore, the risk of prejudicing an impartial trial is increased by the dissemination of inadmissible information. It is essential to the judicial process that jurors and prospective jurors be protected against extraneous influences. The proposed practice makes the attainment of that goal difficult.

This opinion does not preclude a lawyer from obtaining information regarding prospective jurors prior to trial, but the lawyer's efforts to obtain such information should not be in a mass or public manner, particularly one which involves the dissemination of inadmissible facts about the case. A lawyer or anyone on his behalf who conducts an investigation of prospective jurors should act with circumspection and restraint. See Rule 3.6(c).