Opinion 87-26
(December 1987)

You have asked the Professional Guidance Committee for advice in your inquiry of November 4, 1987. The inquiry was presented to the Professional Guidance Committee at its meetings in November and December. This will constitute the formal opinion of the Committee.

Your inquiry asks whether or not you, as trial counsel in a recently completed case, are permitted under the Code of Professional Responsibility to write to jurors asking them to contact you to discuss the case presentation and their verdict. You explain that you are most interested in ascertaining what the jurors believed, did not believe and to give you comment on your trial presentation.

Contact with jurors by a litigant is addressed under Canon 7 of the Code of Professional Responsibility. Ethical consideration 7-29 states, after the trial, communication by a lawyer with jurors is permitted so long as he refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases.

While this statement seems to sanction the actions you would like to take, a word of caution is advisable. DR7-108 deals directly with communications with jurors. That Canon reiterates the admonition that a lawyer not harass or embarrass any juror after discharge. It might be advisable, even though not compelled by the Ethical Considerations or Canon, to seek the approval of the Trial Judge before contact is made. Local Rule of Criminal Procedure for the United States District Court for the Eastern District of Pennsylvania 15(c) mandates that step and the Committee believes it to be prudent to do so. Since, as you have pointed out, the court spoke at length with the jurors after the verdict and out of the presence of counsel, your actions could be misconstrued absent such approval.

You should also be aware of the fact that Rule of Professional Conduct 3.5, which is to go into effect in Pennsylvania on April 1, 1988, prohibits communication with a juror except as permitted by law. Printed Terry Finishing v. City of Lebanon, 247 Pa. Super. 277, 372 A.2d 460 (1977) is the definitive case in Pennsylvania on contact between lawyers and jurors. While that case seems to permit contact after verdict it does so sub silentio.

In summary, while the Committee is satisfied that the action you wish to take is ethically permissible, you should do so with abundant caution and extreme professionalism.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.