Report of Committee to the Board of Directors of the New York County Lawyers’ Association discussing ethical problem raised by decision in U.S.A. v. Driscoll, 276 F. Supp. 333 (1967).





(CANONS 5, 12, 23, and 29




This Committee has been asked by the Board of Directors to discuss the ethical problem raised by Judge McLean in his decision in United Stated of America v. Driscoll, U.S.D.C. So. Dist. N.Y., 11/1/67.


The decision in that case was on a motion by the government to restrain the defendant from further interviewing members of the jury which about a month before had convicted the defendant. Judge McClean stated that two questions were argued:


  1. Whether the requested injunction should be granted.


  1. Whether authorization or approval of the interviews by certain of the attorneys was unethical conduct on their part, warranting disciplinary action.


The Court answered the first question in the affirmative, citing supporting legal authority. This appears to be a question of law which this Committee normally does not consider. Accordingly, we pass to the second question, which is the one to which presumably the Board of Directors wished up to direct our attention. While the second question may also involve a question of law, we probably should nevertheless give the requested answer.


The Court answered the second question in the negative, although obviously of the view that the interviews were improper. The reason why Judge McLean did not recommend disciplinary action, despite his criticism of the interviews and his decision on the first question that they were improper and should be enjoined, was that the Committee on Professional Ethics of the Bar Association of the City of New York had rendered an opinion on Junary 14, 1952 (No. 767) which contained the sentence:


“The Committee is of the opinion that it is not improper for an attorney to interview individuals who have been members of a jury that has been discharged. . . “


Judge McLean stated that “such a broad, undiscriminating treatment of the problem is unfortunate” (pg. 21 of his opinion).


The only Canon cited by Judge McLean was 23:


“A lawyer must never converse privately with jurors about the case; and both before and during the trial he should avoid communication with them, even as to matters foreign to the cause.”


Despite the fact that the first part of the Canon imposes a flat restriction on conversing with jurors, it is believed that the thrust of the Canon is disclosed in the latter part of the sentence. In rendering its Opinion 767 referred to above, the City Bar Committee did not specifically so state, but the opinion impliedly relies on this fact, the Committee on Professional Ethics of the American Bar Association did so state in its Opinion 319, dated August 26. 1967 and reported in American Bar Association Journal, December 1967, pg. 1127, where it said “Canon 23 speaks simply of the problem of the lawyer- jury relationship during trial.” . . .”It does not, however, directly speak to the problem of the relationship between the lawyer and the jury after trial.”; and courts throughout the country have sanctioned interviews with jurors after they have been discharged.


Accordingly, we believe that Judge McLean was in error in citing only Canon 23 as the basis for his view that the attorneys in Driscoll engaged in unethical conduct, although he impliedly recognized this in his supplementary opinion. Rather, the answer to the question seems to depend on whether some other Canon, or whether the type of conduct generally demanded of lawyers as indicated in the introductory statements to the Canons, has been violated.


However, we also believe that Judge McLean’s ultimate decision was right in not recommending disciplinary action on the ground stated of reliance by the attorneys for the defendant on the broad statement of Opinion 767 of the uptown Association referred to above. This is in accord with the practice stated by Chief Justice Weintraub of New Jersey Supreme Court in State v. La Fera, 199 A. 2d 630, cited by Judge McLean, wherein Judge Weintraub said at pg. 636:


“We do not question the good faith of counsel, for we recognize that prior to our expression in this case another view of the reach of our rule could sincerely be held. In these circumstances we need not consider the State’s proposal that the product of an offending investigation be suppressed as a suitable sanction.”


We have reached the following general conclusions:


  1. There are Canons other than 23 which bear on the subject, namely the second sentence of Canon 5 and Canon 15 which uphold the lawyer’s obligation to support a client’s cause, and the last sentence of Canon 29 which requires a lawyer to improve (and not impede) the administration of justice.


  1. We subscribe to the views expressed in Opinion 319 A.B.A. that an attorney may talk with jurors after trial but care should be taken to avoid “harassment, enticement, inducement or improper influence”.


  1. It would be extremely difficult to define precisely the permissible scope of a lawyer’s inquiry in all cases, either as to extent or manner.


Proscriptions have been defined in terms of “hostile searching” (Judge McLean); “searching or pointed: (Judge Prettyman in Rakes v. U.S. 169 F,2d 789, cited by Judge McLean in his opinion); “browsing among the thoughts of the jurors” (State v. LaFera, 199 A. 2d 630, also cited by Judge McLean); and “exploring the consciousness of a particular juror” (New Jersey v. Kociolek, 118 A.2d 812, cited in the A.B.A. opinion). There are undoubtedly others as well, perhaps depending on whether there is initial cause to believe that the jury has acted improperly (see p. 9 of Judge McLean’sopinion).


The above words themselves may also have different meanings. For example, a searching inquiry could simply be far reaching and so be entirely proper if done in a proper manner by lawyer to discharge what he believed to be his obligation to a client. “Pointed” and “hostile” too might under certain circumstances be justified if, for example, there was initial cause to believe that a juror had conducted himself improperly. And in another Opinion of the City Bar Committee, No. 375, sanction was given to an inquiry by a lawyer which on its face certainly could be classified by some as “hostile”.

  1. The matter may have become more complex by the injection of constitutional questions in the recent decisions of the Supreme Court in Parker v. Gladden, 385 U.S. 363, 17 L.ed 2d 420, and of the Federal Court of Appeals in U.S. ex rel De Lucia v. McMann, 373 F.2d 759, both cited by Judge McLean.


  1. As a purely practical matter any attempt by us to particularize would be inadvisable as long as the City Bar Opinions remain unchanged. If desired by the Board of Directors, we would of course be entirely willing to meet with the Committee on Professional Ethics of that Association and to explore the matter with that Committee.


  1. Our views are not affected by the fact that investigation is carried on by an investigator employed on a full-time basis by the attorneys for the defendant, A law firm actively engaged in litigation, both civil and criminal, might prefer to have investigations such as in Driscoll made by a person with whose character, abilities and methods it was thoroughly familiar, rather than by another person, since it must accept responsibility for him


February 8, 1968