Post-Discharge Juror Contact

Rule 3.5(c) does not ban contact with jurors after trial; it bars contact when a listed condition is present. The lead-in prohibits a lawyer from communicating "with a juror or prospective juror after discharge of the jury if" one of three conditions applies.¹ That small word "if" reverses the structure of the rule that governs the trial itself. During the proceeding, Rule 3.5(b) forbids ex parte communication with the persons it covers unless law or court order authorizes it, so silence is the default and permission the exception.² After discharge, the default is permission, and the listed conditions mark the exceptions.

The reversal tracks what is at stake in each period. While a case is pending, a private word to a juror can reach a decision-maker who has not yet decided, with no opponent present to answer. Once the jury is discharged, no decision remains to be influenced, and the rule asks a narrower question about the contact itself. A lawyer who asks a juror in a courthouse elevator, mid-trial, which witness the jury found most convincing violates Rule 3.5(b). The same question put in a call after the verdict is permitted unless a listed condition applies.

The conditions are alternatives joined by "or," and any one suffices. Each looks at something different: a legal prohibition, the juror's own wish, and the lawyer's method. A lawyer who clears all three may speak with a willing juror under this rule. The first condition, the prohibition that law or a court order can impose, comes first.

Prohibited by Law or Order

Rule 3.5(c)(1) applies when "the communication is prohibited by law or court order."³ The condition does not list the forbidden contacts. It borrows that answer from outside the rule. A statute, a court rule, or an order entered in the case may restrict approaches to jurors after the verdict, and when one does, breaking the restriction is also a disciplinary violation. These two sources played the opposite role earlier in the chapter. During the proceeding, law or court order is what permits ex parte contact.⁴ After discharge, it is what forbids contact.

The condition has a single element, the prohibition, so the juror's attitude never enters the analysis. A juror who is glad to talk cannot lift a restriction that a court has imposed. Whoever else the order protects, the rule asks only whether it forbids the contact.

The two calls differ in the one fact that matters, the order. A bar-exam stem that dwells on how friendly the juror was offers a detail that cannot matter under this condition. Check whether law or an order restricts the contact. Then check the juror's wishes and the lawyer's methods, which the next two subsections take up.

Juror Declines Contact

Rule 3.5(c)(2) applies when "the juror has made known to the lawyer a desire not to communicate."⁶ The trigger is the juror's own signal. The text asks whether the juror made the desire known to the lawyer; it prescribes no particular words and does not depend on any order or on any misconduct by the lawyer. Once the signal arrives, the lawyer must stop, even though the jury is discharged and nothing else restricts contact. A lawyer who calls again or writes afterward has violated the rule, however brief and courteous the later contact.

The condition hands control to the juror, and the control runs one way. A juror's wish can switch the prohibition on. It cannot switch off a prohibition that law or a court order imposes, which is why the previous subsection treats an order as independent of the juror's attitude.

Hypothetical Illustration

A discharged juror tells the losing side's lawyer that she would rather not discuss the case. The lawyer says he understands, then telephones her a week later with one question about the closing argument. She had made her wish known, so the second call violates Rule 3.5(c)(2), even though no order exists and the lawyer was polite. A different discharged juror tells a different lawyer that she is glad to talk for a few minutes about how the presentation came across, and the lawyer keeps to that purpose. No order restricts the contact, the juror has expressed no wish to be left alone, and the lawyer misrepresents nothing, so the conversation is permitted. If that juror said partway through that she wanted to stop, the lawyer would have to end the conversation at that moment.

Exam stems often call the later contact short, courteous, or aimed at improving the lawyer's craft, and they often note that the jury was discharged long ago. None of that matters once the juror has said no. Discharge makes permission the default, and the juror's stated wish cancels that default for the lawyer who heard it.

Misrepresentation or Harassment

Rule 3.5(c)(3) applies when "the communication involves misrepresentation, coercion, duress or harassment."⁸ The first two conditions depend on something outside the lawyer's method of contact: a law or order that forbids it, or a juror who has said no. This one looks at the contact itself. A communication that involves any listed feature is barred at any time after discharge, with no order in place and no objection from the juror.

The juror's silence cannot save the contact, and the reason lies in the conduct. A juror who is being misled does not know it and has nothing to object to. A juror who is being pressured may go along because refusing is uncomfortable. A rule that waited for a complaint would protect only the jurors who had already spotted the problem. The verb is "involves," so one false statement is enough. Repeated calls are good evidence of pressure, but repetition is not required.

Hypothetical Illustration

After a verdict for the defense, the plaintiff's lawyer telephones a discharged juror, calls again two days later, and calls once more the next week. On the last call the lawyer says that the court is disappointed in the verdict and would welcome a change of heart, which is untrue. The calls mislead and pressure the juror, so Rule 3.5(c)(3) is violated. It makes no difference that no order restricted contact or that the juror never asked the lawyer to stop. A different lawyer, whose client lost, telephones one discharged juror a single time and asks politely whether the presentation style came across well. The juror answers, and the lawyer ends the call. Nothing in that call was false or pressuring, the juror had not asked to be left alone, and no order forbade contact, so no condition is present and the call is permitted.

The method of contact is the fact that moves between the two scenes. The juror's friendliness, the time since the verdict, and the absence of any order all matter to the first two conditions, and all are irrelevant here.