Reporter’s Explanation of Changes
TEXT:
1. Paragraph (b)
The change to specify communication "during the proceeding" was made in light of the Commission’s decision to treat post-discharge communication with jurors in a new paragraph (c). The reference to "court order" has been added to alert lawyers to the availability of judicial relief in the rare situation in which an ex parte communication is needed.
2. Paragraph (c)
Rule 3.5(b) has been held to be unconstitutionally overbroad when applied to post-verdict communications with jurors. See Rapp v. Disciplinary Board of the Hawaii Supreme Court, 916 F. Supp. 1525 (D.Hawaii, 1996). The Commission has proposed the addition of a new paragraph (c) that permits such communications unless prohibited by law or court order or the lawyer knows that the juror does not wish to be contacted. Also prohibited, of course, are communications involving misrepresentation, duress, coercion or harassment. The proposal permits more post-verdict communication with jurors than the current Rule but affords the juror greater protection than did ABA Model Code of Professional Responsibility DR 7-108(D) which provided, "After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service."
COMMENT:
[2] and [3] These Comments have been added to reflect the change in the Rule text with respect to communication with jurors after discharge of the jury.
[5] This new Comment makes clear that paragraph (d) applies to any proceeding of a tribunal and calls particular attention to its applicability to depositions
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