Summary: A request that a judge instruct jurors that they are free to speak to participating lawyers after the case is concluded would be improper if the proposed instruction does not describe completely the restrictions contained in Rule 3.5(d). In any event, the Rule forbids the request if the lawyer’s purpose in requesting the instruction is to encourage the juror to talk about the deliberation process.
Facts: We have been asked for advice relating to Rule 3.5, Massachusetts Rules of Professional Conduct (MRPC), prohibiting post-trial lawyer-initiated contact with jurors. Specifically, we have been asked:
A. May a trial lawyer ask the trial judge to give the following instruction at the beginning of a case?
“During the case, you are not permitted to speak to the lawyers, each other or anyone else about the case. At the conclusion of the case, however, you will be able to speak to anyone you choose.”
B. May a trial lawyer ask the trial judge to give the following instructions or some portion of the following instructions after the verdict?
1. “The trial lawyers (or the lawyer for the plaintiff/defendant) would like to speak to any jury member who is willing to talk to them about the case. This process helps the trial lawyers to be more effective in presenting cases to future jurors.”
2. “The rules do not allow the lawyers to initiate contact with you the jury, but you are allowed to initiate contact with them, either here in the courthouse or any other place, either now as soon as you are discharged or at a later time. The lawyers will be here (in the courtroom) for a while if you want to talk to them now, and the court has distributed their cards with contact information if you wish to talk to them later.”
3. “If you do speak to any of the lawyers, you may terminate the conversation at any time, and you do not need to speak to all the lawyers, only the one or ones you choose.”
Discussion: Rule 3.5 of the MRPC provides:
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;
(c) engage in conduct intended to disrupt a tribunal; or
(d) after discharge of the jury from further consideration of a case with which the lawyer was connected, initiate any communication with a member of the jury without leave of court granted for good cause shown. If a juror initiates a
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communication with such a lawyer, directly or indirectly, the lawyer may respond provided that the lawyer shall not ask questions of or make comments to a member of that jury that are intended only to harass or embarrass the juror or to influence his or her actions in future jury service. In no circumstances shall such a lawyer inquire of a juror concerning the jury’s deliberation processes.
As noted by the Supreme Judicial Court in the language following its Comments to Rule 3.5, paragraph (d) was taken not from the ABA Model Rules but from the prior DR 7-108 (D). That Disciplinary Rule itself did not mirror the ABA’s Model Code version of DR 7-108(D), which from 1969 to 1983 had provided:
After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of 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.
In 1983, when the ABA recommended its Model Rules of Professional Conduct, it eliminated that language entirely from its Rule 3.5. Massachusetts, however, did not adopt the ABA-recommended Model Rules at that time. It retained the disciplinary rules based on the former ABA Model Code of Professional Responsibility, including the former ABA-recommended version of DR 7-108(D).
In 1991, however, the Supreme Judicial Court amended DR 7-108(D), adopting the language that is currently MRPC 3.5(d), quoted above. The Court did not explain its reasons for the amendment, but Justice Wilkins (joined by Justice Liacos) dissented, stating:
I decline to join in the promulgation of a rule that apparently is intended to deal with a problem that is not shown to exist. For almost twenty years we ... have never had a discipline problem with a lawyer speaking to a juror after the jury’s discharge. The new rule will inhibit counsel’s attempts to discover flaws in the administration of justice. In some instances, the rule may impinge on rights of free speech, ... the effective assistance of counsel, and ... due process .... It will surely tend to inhibit the appropriate disclosure of misconduct in the administration of justice. In the recent Solis case, wrongdoing was discovered because of the efforts of a defense attorney. See Commonwealth v. Solis, 407 Mass. 398 (1990). His conduct would have been grounds for discipline if new DR 7-108(D) had been in effect ... . The Board of Bar Overseers and Bar Counsel have recommended that this court not adopt the proposed change .... The Board points out that no other State imposes such restrictions.
Statement of Opposition to the Adoption of Revised Supreme Judicial Court Rule 3:07, DR 7-108(D), August 26, 1991
When the Supreme Judicial Court’s Committee on Rules of Professional Conduct recommended a revised set of rules of professional conduct in 1996, it referred specifically to Rule
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3.5(d) noting that it had “preserved this rule that the Justices adopted specially, but the committee unanimously opposes it.” Report To The Justices Of The Supreme Judicial Court Of Its Committee On Rules Of Professional Conduct (1996). When the Supreme Judicial Court adopted the Rules of Professional Conduct, it retained its former DR 7-108(D) as Rule 3.5(d) without any discussion. As Chief Justice Wilkins explained,
No member of the practicing bar or a bar organization advised the justices of support for Rule 3.5(d). District attorneys and some judges favored it. All my colleagues favored it, and, with no dissenting vote recorded on any other rule, I decided not to repeat my objections. I remain concerned, however, that, in particular circumstances, Rule 3.5(d) may contravene the rights, perhaps even the constitutional rights, of people like Daniel Solis.
Wilkins, “The New Massachusetts Rules of Professional Conduct: An Overview,” 82 Mass. L. Rev. 261, 264 (1997).
Most recently the ABA’s 2002 changes to the Model Rules have reinstated a new version [3.5(c)] analogous to, but far narrower than, Mass. R. Prof. C. 3.5(d). It provides that:
A lawyer . . . shall not communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress, or harassment.
The foregoing historical background highlights the different direction that Massachusetts has taken from the rest of the country. The present inquiry concerns possible ways in which lawyers may obtain information from a jury that has heard a matter they have presented. We see three main issues that are presented by the proposed instructions.
Each set of proposed instructions suggests that jurors may, if they wish, decide on their own to talk to the lawyers. Neither set of instructions mentions the concluding sentence of Rule 3.5(d), which states that “In no circumstances shall such a lawyer inquire of a juror concerning the jury’s deliberation processes.” It seems to us that if it is appropriate at all for a lawyer to ask a trial judge to tell the jury that they may, if they wish, talk to the lawyers, any requested instructions should describe the restrictions of Rule 3.5(d) completely — so that jurors will not be misled about the responsibilities of the lawyers.
A second problem is the very meaning of the restriction that a lawyer may not “inquire of a juror concerning the jury’s deliberation processes.” That restriction, read literally, says that a
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lawyer may listen to a juror comment about the deliberation process but may not ask anything. Indeed, if a juror says anything about the deliberation process, the lawyer may not say something like, “What happened next,” or even “go on.” The role of this committee is not to revisit the policy decisions made by the SJC when it adopted this or other Rules, including the wisdom of permitting lawyers to listen to jurors but not to engage them in any discussion about the deliberations. Given the history of the SJC’s purpose to forbid efforts by lawyers to encourage jurors to talk about what went on in the jury room, it seems likely that the SJC meant the Rule to be applied both literally and strictly.
An additional question is whether it is appropriate to request instructions that might be understood as encouraging jurors to talk to lawyers. Rule 3.5(d) permits a lawyer to initiate a conversation with a juror only with “leave of court for good cause shown.” Particularly if the lawyer’s purpose in requesting the instruction is to encourage the juror to talk about the deliberation process, that conduct seems to us to be forbidden by the Rule. Finally, we should add that we have addressed only questions of the permissibility of lawyer conduct under the MRPC. Our Rules do not permit us to give advice about questions of substantive law, and we have therefore not addressed any questions relating to the constitutionality of Rule 3.5(d), e.g. any possible free speech or due process issues that may exist.
This advice is that of a committee without official governmental status
This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on January 19, 2006.
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