SDCBA Legal Ethics Opinion 2010-1
(Adopted by the San Diego County Bar Legal Ethics Committee May 18, 2010.) 

I. BACKGROUND

Attorney, a California lawyer, is preparing for a civil jury trial four weeks away. The trial will be held in the branch of the Superior Court located in a suburb of the city where Attorney's practice is located. The suburb has unique demographic characteristics that Attorney believes may affect the way the jury that eventually is selected may react to Attorney's case.

Attorney has contracted with a local forensic services company to assemble a mock jury panel consisting of a cross-section of residents of the suburb where the matter will be tried. The mock presentation is scheduled for two weeks before trial. Attorney knows that, in the county in which the matter will be tried, summonses for jury service for a particular date customarily are served three months in advance.

During the mock trial, Attorney and another attorney from Attorney's firm will present the opening statements from each side, selected portions of witness and documentary evidence from each side, and closing arguments. The members of the mock jury panel then will be asked to deliberate to a verdict and thereafter give their thoughts on the strengths and weaknesses of the evidence and the attorney presentations. 

California Rule of Professional Conduct 5-320 ("Contact with Jurors") subdivision (A) reads: "A member connected with a case shall not communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case."

II. QUESTION PRESENTED 

Does Attorney violate RPC 5-320 by assembling the mock jury, or causing it to be assembled, at a time after jury summonses were sent in the community in which the trial will be held but before the date set for the trial in which the jury will be empanelled?

III. DISCUSSION
 
A.What Exactly Is a Jury Venire for Purposes of Rule of Professional Conduct 5-320?
 
The critical task in this opinion is to define with precision the key term. The rule prohibits contact with the “venire” from which the jury will be drawn. But what is a “venire” exactly for purposes of the rule? If it means the whole community from which jurors may be selected, it would bar a lawyer from contacting anyone in the community in which an attorney is set for trial. At the other extreme, if it means only those called to the particular courtroom in which the matter will be tried on the day of jury selection from which the panel for that trial is to be selected, it would give a lawyer license to contact for any purpose even those who have received a summons for jury service on the date the lawyer’s trial is set to begin.
  
The proper definition is between these two extremes. Black's Law Dictionary defines "venire" in pertinent part as: "The group of citizens from whom a jury is chosen in a given case." (Black's Law Dictionary, Abridged Sixth Edition (1991) p. 1079.) On its face, that could mean an entire community of citizens qualified to sit as jurors. Black's, however, cross-refers the user to the entry for "Jury panel." Black's defines "Jury panel" as: "The group of prospective jurors who are summoned to appear on a stated day and from which a grand jury or petit jury is chosen." (Id. at 597.) The Glossary posted at the California courts’ official online self-help center defines venire in a similar way: “Usually describes the whole group of people called for jury duty from which the jurors are selected. From the Latin for ‘to come.’” (Taken from http://www.courtinfo.ca.gov/selfhelp/glossary.htm#v, accessed 4/20/10.)

California case law consistently uses the term “venire” to refer to that segment of the community actually summoned to jury service. For example, in one case rejecting a challenge that a defendant brought on the basis that Blacks were systematically excluded from the jury pool, the California Supreme Court concluded that the defendant “did not offer any evidence other than statistical evidence of underrepresentation of Blacks on jury venires over a six-month period, and the testimony of the jury commissioner regarding the manner in which jurors were summoned, excused, and the weekly venires made up.” (People v. Bell (1989) 49 Cal.3d 502, 524.) 

For purposes of RPC 5-320, then, jury “venire” means that group of individuals actually summoned to come to a given courthouse, as opposed to a particular courtroom, for jury service at the time trial is set to begin. Those individuals may not be solicited by a lawyer or his or her agent to serve as “mock” jurors. There is no ethical prohibition on an attorney contacting, directly or indirectly, the rest of the community in which the trial is to be held, and from which the court summoned the prospective pool of jurors, to serve in that capacity as long as anyone so contacted is asked first whether they have been summoned for jury service, and if the answer is yes, the contact is immediately terminated. A close examination of the limited case authority that has addressed the issue of pre-trial contact with a jury venire demonstrates why this is the most logical construction of this term in this context.
    
B. A Mock Trial Consisting of Residents of the Community from which the Jury Will Be, or Has Been, Drawn Does Not Violate Rule of Professional Conduct 5-320.  
 
Only two cases have been found that have examined the question of the restrictions on attorney contact with residents of the community from which prospective jurors were summoned after a summons for jury service has been issued.1   
 
1. Primrose Operating Company, Inc. v. Jones 

Primrose Operating Company, Inc. v. Jones (Tx. Ct. of Appeals 2003) 102 S.W.3d 188 involved the appeal of a multimillion dollar personal injury verdict arising out of an oil field accident in a small county in Texas whose population was just over 300 people. The local trial court anticipated some difficulty obtaining a jury so the clerk was instructed to summon 130 veniremen – nearly half the population of the county – for service. (Id. at 192.) The jury summonses were mailed on September 12, 2000. At some point before September 14, 2000, one of plaintiff’s attorneys contacted a local ranch complex in the county seeking to use a conference room at the ranch to conduct an unspecified “meeting” to prepare for trial. Another lawyer on plaintiff’s team, lead trial counsel, contacted a secretary at the ranch to inform her that the room specifically would be needed to conduct a “focus group” to decide how best to present the case for trial. Lead trial counsel “asked the [ranch] secretary to assemble a group who was representative of the county population, but had not been called for jury duty. The secretary assembled a group of approximately seven adults, including a high school teacher and five students from the teacher’s senior government class.” (Ibid.) 

On September 14, 2000, plaintiff’s lead trial counsel presided over the mock trial. He did not know before he arrived at the ranch who would be participating. Before the presentation began, he asked the participants whether any of them had been summoned for jury duty in the case and excluded the one person who had been called. Counsel did not ask if any of the group’s family members had been summoned to the trial venire. The presentation lasted about two hours, during which lead counsel summarized the evidence he expected both sides to present, using flip charts and excerpts of a videotaped deposition. The mock jury concluded that the plaintiff was entitled to a damages award of $7,000,000. Each participant was given a nominal gift certificate to a restaurant for participating.
 
The trial judge learned of the mock trial the day it was conducted and obtained a list of the participants from the ranch. The court clerk compared the list to the jury venire and found several relationships between the two lists. The case was called for trial on September 18, 2000, when the defendants learned of the mock trial for the first time. They jointly moved for a mistrial on the ground that the mock trial had tainted the entire venire. The trial court ultimately denied the motion, but allowed extensive exploration of the mock trial during voir dire. One venire member “pointed out that the mock trial concluded only a few hours before a local junior high football game attended by county residents.” He said that “the mock trial, including the $7 million damage finding, was a major topic of conversation.” (Id. at 193.) At trial, the jury awarded plaintiff over $3 million.

The Court of Appeals rejected the defendants’ contention that the trial court had abused its discretion in denying the motion for a mistrial based on the mock trial. Defendants contended that mock trial violated Texas Disciplinary Rules. Texas Disciplinary Rule 3.06(a)(2) says that a lawyer shall not “seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or applicable rules of practice or procedure.” Rule 3.07 prohibits an attorney from making statements “that a reasonable person would expect to be disseminated by means of public communications.” The Court of Appeals concluded that the trial court had not abused its discretion in finding that neither rule had been violated, warranting a mistrial.

 As to Rule 3.05(a)(2), the provision most similar to RPC 5-320 analyzed here, the Court of Appeals found that the single communication at the mock trial between lead trial counsel and a jury venireman was limited to explaining to a resident who had been summoned as part of the jury venire could not participate in the mock trial even though he wished to do so. “That communication was not improper because it amounted to an effort to avoid a potential violation” of the rule. And any harm from failing to ask the mock jurors whether their family members had been summoned was cured by the “rather detailed exploration of the relationships between venire members and participants in the mock trial” during voir dire. (Id. at 194.). As to Rule 3.07, the Court of Appeals rejected defendants’ argument that word-of-mouth that spread about the mock trial constituted dissemination by the attorney of information by “public communications.”   (Ibid.)
    
2. United States v. Lehder-Rivas

In United States v. Lehder-Rivas (M.D. Fla. 1987) 669 F.Supp. 1563, the government moved to block the defense in a high profile drug prosecution from conducting a detailed “jury profile” in the judicial district in which the matter was pending. A jury profile “is the result of a community attitudinal survey designed to discover specific attitudes about the defendant and the issue involved in a particular case.” (Id. at 1564, note 2.) The defendant sought to conduct the survey “to determine the attitude of the community and to conduct a mock trial.” (Id. at 1566, note 8.)
 
The previous month, the Court had entered and then dissolved a temporary restraining order prohibiting the defense from: “telephone, written, and personal solicitation of opinions and answers to questions; solicitation of any agreement to serve on a mock jury; and the staging of a mock trial using jurors who reside in the Middle District of Florida.” (Id. at 1565.) At the time of the hearing on whether the restraining order should be made permanent, the defendant was in the middle of conducting a poll related to his motion for a pre-voir dire change of venue based on pervasive prejudicial pretrial publicity. While the Court had dissolved the temporary restraining order to allow the defendant to complete his survey, the Court also ordered the defendant, his attorneys, and agents “to notify the Court of any intention to contact residents of the Middle District of Florida, Jacksonville Division on or after September 9, 1987, for the purpose of conducting a poll or survey, or for the purpose of staging a mock trial. The Court arrived at the September 9, 1987 date after being informed by the jury administrator that the venire panel for this case will have been summoned by that date.” (Ibid.)

At the conclusion of the September 9, 1987, hearing on the defendant’s motion for change of venue, which the Court denied, defense counsel advised the Court of their intention to conduct another survey of registered voters in the division of the district in which the matter was to be tried to develop a jury profile. The government renewed its motion for a permanent order blocking such activity with respect to registered voters in the entire district.

The Court granted a modified form of the government’s motion, rejecting defense counsel’s argument that such an order would violate the defendant’s constitutional rights to free speech and a fair trial. “[T]his kind of unsupervised ex parte contact clearly presents a danger to the fair administration of justice.” (Id. at 1567.) Among the ten reasons the Court cited for its conclusion were: (1) Trial was scheduled to begin in less than three weeks; (2) “A venire of 300 has been summoned”; (3) If the evidence the defendant submitted with the motion for change of venue about the attitudes of local residents about the case and the defendant were credible, “the Court could have some difficulty selecting a jury and therefore may have to summon an additional venire;” and (4) “Even if a jury profile would marginally enhance defendant’s preparation for voir dire, contact between defendant’s agents and even one person who has been summoned for the venire would adversely affect the Court’s ability to select a jury.” (Id. at 1567-1568, emphasis added.)
  
The Court emphasized the narrowness of its order, pointing out that, while the government had sought to preclude contact with registered voters in the entire Middle District of Florida (id. at 1564, note 4), the Court’s order did not preclude the defendant “from conducting polls and surveys in communities other than the Jacksonville Division. . . . [T]he only activity proscribed is the contacting of persons who have been summoned for the . . . venire [on the date set for trial] and those persons who could potentially be called if additional venirepersons are needed.” (Id. at 1569-1570, emphasis in the original.) The Court added a footnote to this passage: “If the Court is unable to select a jury from the initial venire, it will not hesitate to summon another panel. Therefore, all registered voters in the Jacksonville Division must be viewed as potential jurors.” (Id. at 1570, note 19.) The Court did not address in its analysis Florida Rule of Professional Conduct 4-35(d) (“Communications with Jurors”) which reads in part: “A lawyer shall not (1) before the trial of a case with which the lawyer is connected, communicate or cause another to communicate with anyone the lawyer knows to be a member of the venire from which the jury will be selected.”

3. Analysis

 Both Primrose Operating Company and Lehder-Rivas, addressing the issue of pre-trial mock trials in different contexts, confirm that the term “venire” for that purpose means those actually summoned as opposed to all of those in the community. In Primrose Operating Company, the Texas Court of Appeals makes this clear by rejecting any harm caused by, or ethical transgression resulting from, “a single communication” with a “jury venireman” that consisted only of concluding that he had been summoned to service before excluding him from the exercise. The Court thus concluded that a mock trial conducted with other county residents who had not been summoned did not constitute contact with the “venire” for purposes of the ethical rule.

Similarly, the District Court in Lehder-Rivas made the meaning of “venire” clear when, in justifying its order blocking a mock trial in the division of the district in which trial would be held, it addressed the need to preserve the Court’s ability to summon “additional venirepersons” if the “initial venire” proved inadequate. “Venire” makes sense in the Court’s order only if it refers to those actually summoned for jury service rather than those potentially available to be summoned to the venire.

 The two cases arose in very different procedural settings, but were rooted in a common understanding of the term “venire” at the heart of the ethical rule. After trial had been conducted and a judgment rendered on a verdict, the Primrose Operating Company Court evaluated whether a mock trial in the small community in which the trial was held required a mistrial. The Court concluded the taint was insufficient because trial counsel took steps to ensure that no member of the venire actually was part of the exercise. Before trial had been conducted but after a venire had been summoned, the Lehder-Rivas Court considered whether even permitting trial counsel to conduct a mock trial drawn from members of the division of the District in which the trial was to be held posed too great a risk to the administration of justice. The Court blocked the mock trial, not because it believed the entire community constituted the “venire.” Indeed, the Court did not even address the ethical rule addressing pre-trial attorney contact with a venire. Instead, the Court blocked the mock trial because there was too great a risk that the trial would be tainted if defense counsel contacted residents of the community who later became part of the venire because a jury could not be assembled from the initial venire.
 
Where a court does not prohibit a mock trial after a jury venire has been summoned, an attorney should advise anyone assembling the mock panel, and admonish the members of the mock panel themselves before the presentation begins, that no one who has been called to service for the date set for trial, or intends to appear for service on that date if the summons gives the recipient flexibility about the reporting date, may participate. RPC 5-320 requires that the attorney have actual, rather than constructive, knowledge that someone is a member of the venire before the ethical rule is offended. But it may be enough that the attorney knows that the individual has been summoned for the date and courthouse his or her trial is set to begin, even if no courtroom assignments are made until the day the venireperson reports for service. Such an inquiry is no more burdensome than the strong suggestion, if not ethical mandate, that an attorney ask whether a party is represented by counsel before engaging in ex parte contact with that party in potential violation of RPC 2-100, which also requires that the attorney have actual knowledge of the approached person’s status. (See Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1194.)     
 
IV. CONCLUSION
 
Absent court order, an attorney is not ethically prohibited from conducting a mock trial with members of the community in which the attorney’s trial will be held, even after a venire of prospective jurors has been summoned and even in a relatively small community. To avoid offending the ethical rule, and compromising the administration of justice, an attorney conducting such an exercise should screen participants about whether they have been summoned for jury service for the date the attorney’s trial is set to begin and exclude from the mock trial those who have been summoned for that date or indicate they intend to appear for service on that date.

1Beyond the two cases analyzed below, we also note the holding in In the Matter of Rivers (1984) 285 S.C. 492, upholding public reprimand of an attorney who caused a private investigator to communicate, before trial, “with persons whom he knew to be members of the jury venire. . . .” (Id. at 493.) The Supreme Court of South Carolina does not define the term “venire” in its brief per curiam opinion. It is thus of limited value in the analysis of the question presented in this opinion.