Concept
Contact After Discharge
Impartiality and decorum of the tribunal
Contact After Discharge
Rule 3.5(c) governs a lawyer’s contact with jurors once the jury has been discharged, and it starts from permission. The comment says a lawyer may contact a juror after discharge “unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer.”1 The rule text turns that default into three limits. A lawyer may not “communicate with a juror or prospective juror after discharge of the jury if”2 the communication is prohibited by law or court order;3 the juror has made known to the lawyer a desire not to communicate;4 or the communication involves misrepresentation, coercion, duress or harassment.5 Any one of the three suffices, and a lawyer who meets none of them may speak with the juror. Each limit asks a different question: what an outside authority has ordered, what the juror has said, and what the lawyer has done. The subsections below take them one at a time.
The default flips at discharge because the verdict is in. A lawyer’s words can no longer shape a decision the jury has already returned, and legitimate reasons to talk with jurors may have appeared. The date of discharge is therefore the first fact to fix on any problem. The lawyer who could not exchange a word with a sitting juror in the elevator may, after discharge, call that juror unless one of the three limits applies. A call made before discharge falls under the rules on sitting and excused jurors; a call made after discharge falls under paragraph (c).
Adams v. Ford Motor Co. supplies one running example for all three limits. The lawyer, Colianni, believed the verdict form contained a clerical error. Unable to reach the jury foreperson, he called another juror, Alicia Barnes. She asked whether it was appropriate for her to speak with him, and he said it was permissible. He then explained the Virgin Islands law of contributory negligence and misstated the standard the court could apply. Barnes soon said she felt uncomfortable discussing the case, and the call ended. It lasted about a minute, and three of Colianni’s colleagues, who were in his office, heard all of it on the speakerphone.6 A few days later the judge received a letter from Barnes calling Colianni’s conduct “reprehensible” and “bordering on harassment.”7
The magistrate judge found that Colianni had “engaged in misconduct by his post-verdict communication with a juror in contravention of American Bar Association Model Rule of Professional Conduct 3.5(c),” and referred the matter to the Virgin Islands Bar Association for a “formal investigation and disciplinary proceedings.”8 The court of appeals held that the judge abused his discretion in finding misconduct and sanctioning Colianni. It also held that the judge denied Colianni due process by not following the disciplinary procedures in the local rule and by not giving him sufficient notice and an opportunity to be heard.9 The due process holding concerns how a court may discipline a lawyer, so this unit follows the court’s analysis of the rule itself.
Because the magistrate judge’s order invoked Rule 3.5(c) generally, the court of appeals tested the call against each condition in turn. This unit does the same, starting with the limit that depends on outside authority.
Law or Court Order
Rule 3.5(c)(1) bars post-discharge contact when “the communication is prohibited by law or court order.”10 This limit differs from the other two because it looks outside the conversation. Whether the juror minded the call, and how the lawyer behaved on it, are facts about the exchange. This limit asks only whether a statute, a court rule, or an order in the case had already closed the channel. Check for a prohibition first. If none exists, this limit is not met, and the analysis moves on to the other two.
Courts police the edges of their own permission. In Diettrich v. Northwest Airlines, Inc., 168 F.3d 961, 964 (7th Cir. 1999), the attorneys used post-verdict dialogue with the jury to support motions to overturn the verdict. The Seventh Circuit found that use outside the scope of the district court’s permission to interview jurors informally, because it “invited the court to open the black box that is the jury room.”11 A lawyer who goes past the edge of what a court allowed is outside that permission, and Rule 3.5(c)(1) makes the court’s limit a professional obligation as well.
Adams shows the limit going unmet. Nothing in the record suggested that the judge had forbidden Colianni or his opposing counsel to contact jurors after the verdict, and the local rules of the District Court of the Virgin Islands do not prohibit attorneys from contacting jurors post-verdict.12 The juror may have found the call unwelcome, but no law or order had closed the channel, so the first limit had nothing to attach to.
The call in the box matches the Adams call in length, purpose, and courtesy, and the order is the only fact that changed the answer. Brevity, good manners, and a sincere reason for calling supply no defense under this limit, because paragraph (c)(1) asks only whether law or court order prohibited the communication. The converse holds as well. The absence of an order protects a lawyer from this limit and no other, which is why the court of appeals went on to ask whether the juror had made known a wish not to talk and whether the call amounted to harassment.13
Juror’s Wish Not to Talk
Rule 3.5(c)(2) bars post-discharge contact once “the juror has made known to the lawyer a desire not to communicate.”15 The first limit looked outside the conversation. This one looks inside it, at what the juror said or signaled and what the lawyer did next. The operative words are “has made known,” which place the trigger in the juror’s expression of a wish. A juror who feels reluctant but has said nothing has not triggered the rule, and a juror who has spoken up has ended the lawyer’s freedom to continue.
The limit imposes a duty to stop but no duty to presume. The comment states the duty: the lawyer “must respect the desire of the juror not to talk with the lawyer.”16 The burden falls on the lawyer, who started the contact, and the juror need not justify a refusal. The rule does not, however, ask a lawyer to assume reluctance in advance. Some jurors are willing to talk, and a lawyer may have good cause to ask, as Colianni did when he suspected a clerical error on the verdict form.17 Placing the trigger in the juror’s expression costs the juror little, since one sentence ends the conversation, and it keeps legitimate inquiries open.
Adams applies the limit to a call that began with a question. The court of appeals reasoned that Barnes first asked Colianni whether she was permitted to speak with him, that once he told her she could, she willingly conversed with him, and that she expressed her discomfort only briefly into the call. Colianni ended the call as soon as she did.18 The court therefore found no violation of paragraph (c)(2), which it described as prohibiting attorneys from contacting jurors who have made clear their desire not to communicate.19
Two features of those facts decide the result. A juror’s question about whether she may talk asks for information, and a lawyer who answers it correctly has not been told that the juror wants to be left alone. The signal that counted was Barnes’s statement of discomfort, and Colianni’s conduct changed the moment it arrived. Her later letter condemning the call does not alter that, because the limit asks what the juror made known to the lawyer, and she made known her discomfort at the end of a short call that the lawyer then ended. A problem that reports a juror’s irritation after the fact therefore does not, by itself, show a violation of this limit.
Beside Adams, the two calls open alike: each lawyer had a post-verdict reason to ask, and each juror answered willingly at first. They diverge on a single fact, what the lawyer did with the juror’s signal. Colianni’s call ended when the juror said she was uncomfortable; this one continued past the juror’s statement. The same timing governs a wish expressed before any call. A juror who tells a lawyer in the courthouse hallway after discharge that she does not want to be contacted has made her desire known to the lawyer, so a later telephone call, even a first and brief one, communicates with her after the wish was made known and violates the limit. How clearly a juror must speak is a question of fact, and the court described the limit as reaching jurors who have “made clear” their desire not to communicate.20 A lawyer who hears a hesitant answer does best to stop or to ask whether the juror wishes to go on.
Step two does the real work. The rule looks to what the juror made known to the lawyer, so a juror’s later unhappiness cannot be read back into the call, and step three then asks only whether the lawyer honored the signal.
Deception, Coercion, and Harassment
Rule 3.5(c)(3) bars post-discharge contact when “the communication involves misrepresentation, coercion, duress or harassment.”22 The first two limits asked whether a law or order had closed the channel and whether the juror had asked to be left alone. This limit examines the communication itself, so a lawyer can violate it when no order exists and the juror has never voiced a preference. It also fills a gap in the second limit. A juror who has been deceived or pressured may never say she wants to be left alone, so a limit that turns on the juror’s expressed wish would not reach the lawyer who gained her cooperation by deceit.
Barnes’s letter shows what is at stake for jurors: she wrote that the call was “the reason many are leery of serving as jurors in our small community.”23 Her view of the call did not decide the case, however, because the court measured Colianni’s conduct against a definition of harassment, the one term of the four that the opinion defines.
The court of appeals reached harassment last, after finding no prohibition by law or order and no expressed wish not to talk. It turned to Black’s Law Dictionary, which defines harassment as “words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”24 That definition is the court’s measure of the term. The rule itself does not contain it.
The definition has four working parts. The conduct is directed at a specific person, which fits a rule about a lawyer’s communication with an individual juror. It annoys, alarms, or causes substantial emotional distress. It is usually repeated or persistent, and the word “usu.” makes repetition typical rather than essential. And it serves no legitimate purpose, so the same call can be fair inquiry or harassment depending on why the lawyer made it. In Adams, repetition and purpose did the work.
The false claim that the judge requested the calls is a misrepresentation made to obtain the juror’s cooperation, which is the deception this limit exists to catch. The repetition and the pressure to change an account supply harassment under the dictionary definition. The juror’s-wish limit could never have been triggered, because the deception is what kept the juror from objecting. Take away the lie, the repetition, and the pressure, and what remains is the call Adams actually reviewed.
In Adams, Colianni called the juror once, and the whole conversation lasted about a minute.25 The court found that his conduct was not repeated and that he called with a legitimate purpose, to understand how the jury had calculated damages. It had already noted that he ended the call as soon as the juror said she was uncomfortable.26 It concluded that the conduct could not be harassment under any reasonable interpretation of the term and that the record did not support a violation of any other provision of the rule. Because the magistrate judge had ruled otherwise on a clearly erroneous assessment of the evidence, the court held that he abused his discretion in finding misconduct.27 None of those facts concerns how the juror felt. She had written that the call was “reprehensible” and “bordering on harassment,”28 yet the analysis turned on what the lawyer did, measured against the definition.
Colianni had also told the juror something wrong about the law, and he acknowledged that he had mistakenly given her incorrect information about the contributory negligence standard.29 The court nonetheless found no violation of any provision of the rule.30 The safe reading is a narrow one: an acknowledged mistake about the law, made on a one-minute call with a legitimate purpose, did not lead the court to find misrepresentation or any other violation. Nothing in the opinion suggests that a knowing falsehood used to get a juror to talk would be treated the same way, and the hypothetical above marks the other side of the line.
Step four does the sorting. Students most often go wrong by treating a juror’s later unhappiness as proof of harassment. The definition looks to the conduct and its purpose, so a single polite inquiry that ends on request stays outside it, while a deceptive or relentless campaign falls inside it even when the juror never asks to be left alone.