Section Review

I. Introduction¹

Massachusetts Rule of Professional Conduct 3.5(d) (“Rule 3.5(d)”) regulates a lawyer’s communications with jurors after a trial. The rule is considerably more restrictive than the equivalent rule found in most other jurisdictions and in the ABA’s Model Rules of Professional Conduct. This article examines why Massachusetts adopted a more restrictive rule, describes some of the problems associated with these restrictions, and summarizes a proposed pilot program that the Massachusetts Bar Association recently submitted to the Supreme Judicial Court for consideration.

II. History of the current rule

Until 1991, Massachusetts Disciplinary Rule 7-108(D) permitted attorneys to communicate freely with jurors after a trial so long as the communication was not calculated merely to harass or embarrass the juror or influence the juror in future jury service.

The current and more restrictive rule was adopted due to an unusual procedural history that began in 1979 with the Supreme Judicial Court’s decision in Commonwealth v. Fidler, 377 Mass. 192, 385 N.E.2d 513 (1979). In Fidler, the Court set out in dictum some guidelines for questioning a juror after trial. In particular, the Court explained that questioning (1) must be by court order only, generally under the supervision of a judge, (2) may be initiated only upon a preliminary showing of extraneous influence, and (3) may not involve the jury’s thought processes. Id. at 201-04. DR 7-108(D) was not amended at that time to reflect the Fidler guidelines.

The potential for confusion over the liberal DR 7-108(D) and the more restrictive Fidler guidelines became clear in Commonwealth v. Solis, 407 Mass. 398, 553 N.E.2d 938 (1990), where the SJC held that a lawyer had obtained information from a juror in contravention of the Fidler guidelines, but not in violation of DR 7-108(D). Id. at 399. See also id. at 402-03 (explaining the differences). The Court granted a new trial in that case as a result of the information that the lawyer had learned, Id. at 401-02, but the Court also stated its inclination to amend the disciplinary rule to comport with the Fidler restrictions. The Court recognized that such an amendment would make the Massachusetts rule “more rigorous than those generally in effect elsewhere in the country,” Id. at 403, and expressed concern that “there will be no process, within the defendant’s control, by which the defendant can seek to discover whether there were extraneous influences on the jury....” Id. at 404. Despite these concerns, the SJC amended DR 7-108(D) in 1991, essentially codifying the Fidler procedure and establishing the rule that exists to this day.²

In 1996, the SJC’s Committee on Rules of Professional Conduct recommended the adoption of most of the ABA’s Model Rules of Professional Conduct. The Court, however, did not adopt the more permissive ABA Model Rule 3.5, and instead retained the substance of the more restrictive Massachusetts Rule 3.5, which remains in effect. It states:

A lawyer shall not … 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 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.³

Thus, Massachusetts continues to impose strict regulations on post-trial juror contact despite a clear trend towards the adoption of the more permissive Model Rule 3.5(c), which provides as follows:⁴

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

In 2006, a Massachusetts Bar Association Task Force studied Rule 3.5 to determine whether Massachusetts should join the increasing number of states that permit more post-trial juror contact. The task force, which consisted of lawyers, judges and law professors from around the commonwealth, unanimously concluded that the rule is indeed unnecessarily restrictive and should be reexamined.⁵ To that end, the MBA submitted a letter to the SJC on June 6, 2008, which highlighted many of the problems with the current rule and proposed a pilot program that would permit more post-trial contact with jurors.

III. Problems with the current rule

The task force identified numerous problems with the restrictive Massachusetts rule. First, Rule 3.5 is ambiguous and poorly understood. Many attorneys and judges believe the rule does not allow any contact between counsel and the discharged juror, or any questioning of the juror by counsel. What the language apparently prohibits, however, is for counsel to initiate contact or to inquire about the “jury’s deliberation processes.” Thus, the area of inquiry that is “off-limits” is ambiguous.

Second, Rule 3.5 makes it more difficult for criminal defendants and civil litigants to discover illegal extraneous influences or other similar improprieties that occurred during deliberations. If counsel must wait for a juror to come forward and volunteer such information, lawyers may be unable to discover improprieties and challenge tainted verdicts. Although judges frequently speak privately with jurors after a verdict and occasionally allow the attorneys to speak with the jury in a supervised setting, it is unlikely that juror improprieties would be revealed in such a setting.

Third, the current rule takes away from jurors a valuable opportunity to discuss their experiences. Many jurors are eager to discuss their experiences as jurors with the lawyers, but Rule 3.5 discourages such communications.

Finally, Rule 3.5 tends to inhibit the development of trial techniques designed to increase juror comprehension. Much work is being done to find new trial techniques to help juries better understand the facts and the applicable law in a trial. Rule 3.5(d), however, makes it more difficult for judges and lawyers to find out if these techniques have helped, and the rule limits the feedback that trial lawyers need to improve their skills. Again, judges occasionally allow attorneys to speak with the jury in a supervised setting, but jurors may be reluctant to offer the needed feedback in such a formal and public environment.

IV. Concerns about a change

The task force and the MBA’s proposal for a pilot program addressed three concerns that are typically raised to explain the need to limit post-trial contact with jurors: preventing juror harassment, maintaining secrecy of deliberations to encourage candid expression, and promoting finality of verdicts. See, e.g., Commonwealth v. Fidler, 377 Mass. at 195.

The MBA’s pilot program proposal addressed the first concern, possible harassment, by explicitly prohibiting harassing conduct and making clear that a lawyer must stop all communications with a juror as soon as a juror indicates a desire to be left alone. Thus, a lawyer who engages in harassment risks bar disciplinary proceedings. Moreover, the absence of recorded complaints prior to 1991,⁶ during which time Massachusetts lawyers operated under a less restrictive rule, demonstrates that the concern about harassing conduct may be largely unfounded.

With regard to the concern for secret deliberations, secrecy certainly encourages candor, but jury deliberations are not private, except to the trial lawyers. Jurors may be questioned about their deliberations by the news media, by police, by insurance company investigators or even by the parties or their friends. If lawyers are permitted to ask the same questions as everyone else and to learn the same information, jurors are unlikely to alter the way in which they currently deliberate. Moreover, even though jurors should deliberate with some confidentiality, there does not appear to be any legitimate interest in keeping secret any significant extraneous influences that the jury experienced.

Finally, although there is a valid interest in the stability of verdicts, this interest was not intended to protect verdicts that were tainted by extraneous influences. The system’s overarching goal is to provide a just and accurate result in accordance with the law. That goal is inconsistent with leaving tainted verdicts intact. Indeed, some states have identified this concern as the very reason for permitting lawyers to communicate with jurors following a trial.⁷

V. The MBA’s pilot program proposal

The MBA’s proposal to the SJC treats civil and criminal cases separately and suggests two alternative proposals for each. In both sets of proposals, the MBA encourages the adoption of a pilot program that would allow the state trial courts to determine whether any of the concerns that have been expressed would, in fact, materialize.

The MBA’s proposal also addresses two additional concerns that were not addressed by the task force. First, there is the possibility that a lawyer’s post-trial communication with jurors will make them concerned for their safety, especially in criminal cases, and thus make the public less willing to serve as jurors in those cases. Second, there is a concern that a more permissive rule would produce a significant increase in post-trial motions based on jury misconduct, thus adding to the state judiciary’s already heavy workload. The MBA expressed optimism that these concerns would not, in fact, arise, but the MBA’s proposals sought to incorporate the concerns that had been raised by some members of the bar and the judiciary.

A. Civil cases

Both civil case proposals would allow post-trial contact with jurors in ways that are similar to the more permissive ABA Model Rule 3.5(c). The civil case proposals differ from each other in only one material respect. One proposal suggests an opt-in procedure, where during an initial two-year pilot period, trial judges can in their discretion and on a case-by-case basis allow post-trial contact. The second proposal, the one preferred by the MBA, offers an opt-out procedure, where during an initial two-year pilot period, lawyers would presumptively be allowed to engage in post-trial communications with jurors unless the trial judge affirmatively specifies otherwise, either through an order in each individual case or through a standing order. The MBA endorsed the latter approach and proposed the following text for Pilot Rule 3.5(d):

Massachusetts Rule of Professional Conduct Pilot Rule 3.5(d)

(d) A lawyer shall not communicate with a juror or prospective juror after discharge of the jury in a civil case if:

(1) the communication is prohibited by 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.

This opt-out proposal has a notable advantage over an opt-in procedure. Because of the extra work required to issue an order permitting post-trial contact, it is likely that fewer judges will experiment with post-trial jury contact under an opt-in framework. Thus, at the end of the two-year period, an opt-in proposal may not generate sufficient data to evaluate the concerns that have been raised. In either case, the MBA’s proposed pilot program is limited to two years so that the SJC can assess whether any actual problems have materialized.

B. Criminal cases

In light of the concerns raised about juror safety in criminal cases, the MBA offered two alternative and more restrictive rules for criminal cases. The MBA’s first proposal applies the old version of Rule 3.5(d). However, because the MBA is not aware of any juror safety issues related to this rule in other states, the MBA endorsed the second approach, which clarifies what a lawyer is allowed to do in criminal cases. The language for that proposed pilot Rule 3.5 is as follows:

(e) A lawyer shall not, after discharge of the jury from further consideration of a criminal case with which the lawyer was connected, initiate any communication with a member of the jury without leave of court. If a juror initiates a communication with such a lawyer, the lawyer may communicate with that juror in a manner consistent with pilot Rule 3.5(d).

The MBA preferred the latter approach because it allows a conversation with a juror after the conclusion of a criminal case if the juror initiates the contact. The primary concern about making post-trial contact more available in criminal cases is that jurors might be fearful about their safety if they are contacted by the lawyer for the criminal defendant. Such a concern would not be present when the juror initiates the contact with the lawyer. Under those circumstances, the lawyer’s conversation would have to comply with the requirements of the proposed pilot Rule 3.5(d) for civil cases.

IV. Conclusion

Most states, and the American Bar Association in its Model Rules, have resolved the valid governmental concerns concerning post-trial jury contact without dramatically curtailing contact. A pilot program, such as the one that the MBA is proposing, would allow Massachusetts courts to determine whether a more permissive rule would have any negative consequences and whether Massachusetts should join the majority of other states in permitting more post-trial juror contact.

Endnotes

1. Significant portions of this article are drawn directly from the Massachusetts Bar Association’s June 5, 2008, letter to the Supreme Judicial Court seeking an amendment to Rule 3.5 and from the 2006 Report of the MBA’s Jury Communications Task Force. The Task Force Chairs were former Chief Justice Herbert Wilkins and Attorney Kathy Jo Cook; the principal drafter of the report was Professor Timothy Wilton of Suffolk University Law School. Professor Perlman was a member of the task force and was the principal drafter of the MBA’s June 5, 2008, letter.

2. Justice Wilkins, the author of the Solis opinion and a co-chair of the MBA’s recent task force, joined by then Chief Justice Liacos, issued a Statement of Opposition to the Adoption of Revised Supreme Judicial Court Rule 3:07, DR 7-108(D). On Aug. 26, 1991, Massachusetts Lawyers Weekly published their concerns about the new rule:

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...[and] 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.

3. The Massachusetts Bar Association, the Boston Bar Association, the Massachusetts Attorney General and the Committee for Public Counsel Services, among others, opposed the adoption of this rule.

4. The majority of states, 32 in total, have adopted the ABA rule, some variation of it, or no rule whatsoever. At the time of the task force report, these included: Alaska, Arizona, Arkansas, California, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Minnesota, Nebraska, Nevada, New York, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin, and Wyoming.

5. A number of organizations endorsed the task force’s conclusions, including the Massachusetts Association of Criminal Defense Lawyers, the Massachusetts Defense Lawyers Association and the Massachusetts Academy of Trial Attorneys.

6. See supra note 1.

7. The comments to the New York rule, for example, state: “Were a lawyer to be prohibited from communicating after trial with a juror, he could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected.” Note, N.Y. Disciplinary Rule 7-108 [1200:39]. See also, Nev. Rule 176(3).

Andrew Perlman is a professor at Suffolk University Law School, where he teaches and writes about legal ethics and civil procedure. He has written numerous law review articles and was recently added as co-author to the book, Regulation of Lawyers: Statutes and Standards. He is also co-author of a forthcoming case book in civil procedure and is a co-contributor to www.legalethicsforum.com, which was recently named by the American Bar Association as one of the top 100 law-related blogs in the country.