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Rule limiting lawyers’ post-trial contact with jurors upheld

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  1. Libel and Privacy
TEXAS--In mid-July, a divided Texas Supreme Court in Austin denied a First Amendment challenge to a professional conduct rule restricting…

TEXAS–In mid-July, a divided Texas Supreme Court in Austin denied a First Amendment challenge to a professional conduct rule restricting lawyers’ post-verdict communications with jurors, holding that such contact threatens fair trial rights and juror privacy.

The panel noted that protecting the jury system is an important goal that could justify restricting the news media’s post-verdict contact with jurors. The court cited United States v. Cleveland, a 1997 decision from the federal appeals court in New Orleans (5th Cir.) upholding a court order requiring all persons to obtain court permission before interviewing discharged jurors.

The court observed that the U.S. Supreme Court has held that attorney speech can be regulated more closely than the speech of others because they have special access to information through discovery and client communications.

Personal injury attorney Barry Benton represented plaintiffs before a jury that found the defendant liable but awarded his clients no damages. After the jurors had been discharged, Benton sent a letter to each of them attacking their integrity, alleging that their verdict was not based on the evidence, but was in response to a local “lawsuit abuse” campaign.

Benton’s letter came to the attention of the State Bar District Grievance Committee, which concluded that Benton had violated Rule 3.06(d) of the Texas Disciplinary Rules of Professional Conduct and recommended that he be reprimanded. The rule prohibits attorneys connected with a case from having post-verdict contact with a juror that is calculated to “harass or embarrass the juror or to influence his actions in future jury service.”

Benton admitted to violating Rule 3.06(d), but argued that it infringed on constitutionally protected speech, was overbroad and vague, and violated his right to equal protection under the law. The district court rejected Benton’s constitutional arguments, suspended him from law practice for six months, ordered him to perform community service and directed him to apologize to the jurors.

The Supreme Court struck down the rule’s use of the term “embarrass” as unconstitutionally vague, and remanded the case to the trial court to conduct a penalty hearing. (Commission for Lawyer Discipline v. Benton; Appellant’s Counsel: Barry Benton, pro se)