Opinion 91-27
(November 1991)

You have requested guidance from the Professional Guidance Committee regarding the distribution of a jury Questionnaire to jurors who served in a civil trial, after the jury has completed its service and rendered its verdict. You have asked the Committee to assume that you distribute the Questionnaire only in cases in which the Trial Judge does not specifically advise counsel not to question the jurors.

The Questionnaire requests a juror to identify him or herself and advises that the juror may refuse to answer any questions. It contains general questions about the juror's background, including the juror's prior jury service and views on political issues (e.g., view on abortion, voter registration). Other questions are directed to the specific trial, including which of the trial witnesses the juror believed, when the juror formed a first impression about the case and what that impression was, whether the juror knew the parties or the judge, whether the judge's attitude or actions towards any of the parties affected the juror s impression, whether the juror was aware that plaintiff would not receive money unless defendant was found negligent and whether the juror had any unanswered questions.

The Committee has previously opined that an attorney may write to jurors in a recently completed case to ask them to contact the attorney "to discuss the case presentation and their verdict" as long as the communications with the jurors did not harass or embarrass the juror. See Guidance Opinion 87-26. The Committee further advised that counsel should seek the approval of the Trial Judge before contacting any juror. Id. The Committee's Opinion was founded on the then effective Code of Professional Responsibility, Ethical Consideration 7-29, which states,

[A]fter 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.

The Opinion also noted that the same conclusion was warranted under the then not yet effective Pennsylvania Rule of Professional Conduct 3.5, Impartiality and Decorum of the Tribunal which provides "[a] lawyer shall not ... communicate ex parte with [a juror] except as permitted by law."

Consistent with this previous opinion, the Committee is of the opinion that whether the distribution of the Questionnaire violates Rule 3.5 depends upon the practice of the Trial Court which heard the case and the manner in which counsel follows up with the jurors.

Counsel should be aware that even if a Trial Judge does not specifically advise against contacting jurors, such contact may be prohibited by local rule or custom. Counsel, therefore, should, as a threshold matter, consult court local rules and customs to determine whether prior approval of the Trial Judge is required before contacting the jury. See, e.g., Local Rule of Criminal Procedure 15(c), United States District Court for the Eastern District of Pennsylvania (requiring such prior approval).

In addition, under no circumstances may counsel harass or embarrass a juror, or attempt to influence the actions of a juror in future cases. The distribution and collection of the Questionnaire appears not to violate this prohibition because Inquirer's only contact with a juror would be through the written Questionnaire. The Questionnaire also properly advises jurors that they have the option of not answering any question. The Committee suggests, however, that the Questionnaire also state that a juror has no obligation to answer any of the questions.

Finally, any counsel who communicates with a juror after verdict should be mindful that, under Pennsylvania law, although there is no per se prohibition against contacting a juror after a verdict, see Printed Terry Finishing v. City of Lebanon, 247 Pa. Super 277, 372 A.2d 460 (1977), the practice of interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this Court in Cluggage v. Swan, 4 Binney 15O, 158 (1811).

Commonwealth v. Patrick
, 416 Pa. 437, 206 A.2d, 295 (1965) (citations omitted). The mere distribution and collection of the Questionnaire would avoid such prohibited conduct because it does not involve obtaining ex parte, unsworn statements in answer to undisclosed questions and representations. Further, it appears that the Questionnaire is being distributed for the valuable purpose of educating counsel about the jury's reaction to the trial, not for the purpose of searching for a basis for a motion for a new trial through establishing juror, counsel or judicial misconduct or otherwise.

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.