Opinion 257
Question Presented
A member, after the jury verdict was returned in a case in which he participated as counsel, wrote to one of the jurors a letter explaining certain aspects of the case and defending himself against what he terms personal accusations directed toward him during the trial by opposing counsel.
The case involved a personal injury suit, and said member stated in his letter that, because of our laws and Court rules, which hold that a jury may not be advised of the existence of any insurance, nor of the role of the insurance company in such cases, he "was not permitted to tell the whole truth concerning these matters" and that he was, therefore, unable to defend himself against "personal accusations" made by opposing counsel to the effect that said member was trying to "take away Defendant's property for which he and his family had worked so hard" and, further, that the guardianship of the estate of the minor child involved was "some kind of shenanigan."
In his letter, said member, making indirect reference to the "hundreds" of such cases he had handled, explained the general situation regarding suits in which insurance companies have a part and continued with the statement: "In the event that you, your family or friends ever have the occasion to serve on another jury in which I am an attorney, you may be assured that the named Defendant is covered by insurance and that neither I nor my client will be seeking to take anything, money or property, away from the individual."
Said member included a paragraph referring briefly to his background and personal philosophy and, lastly, he attempted to justify his letter by saying: ". . . but I can but hope that this will help to erase some of the unfair, unnecessary and stinging personal prejudice which my opponent sought to throw at me. The verdict, at least to me, indicated that some similar seed had fallen into fertile ground and had started to grow."
Does such a letter violate the Canons of Ethics?
18 Baylor L. Rev. 333 (1966)
DISLOYALTY TO THE LAW - SELF-LAUDATION - INDIRECT ADVERTISING AND SOLICITATION
It is unethical for a member to write to a discharged juror a letter which urges disloyalty to the law and which contains elements of self-laudation, indirect advertising and solicitation.
Canons 24, 29.
It is the opinion of the committee that the letter violates both Canons 24 and 29.
The committee believes that the letter in question contains sufficient elements of advertising and self-laudation to constitute a violation of Canon 24. Even though it may be granted that the member's purpose in writing the letter was only to defend himself against allegedly improper charges, it is nevertheless concluded that this letter and all such letters can only constitute a form of advertising and an indirect solicitation of business. The letter also contains an undue element of self-laudation and, particularly, the reference to "hundreds" of personal injury cases which the member has handled seems uncalled for. In addition, the committee believes that the letter is in bad taste and fails to meet the general standards of conduct with which all lawyers should comply.
Of more serious import, however, is the writer's attempt to disseminate amongst prospective jurors the information that (1) in any personal injury case in which the writer represents a Plaintiff, there will always be insurance coverage for the Defendant and (2) though evidence to this effect cannot be submitted to or considered by a jury, the jurors can know it in their "own hearts" and "minds" and (3) by implication, the jurors can and should act on such information contrary to law.
This effort to influence future jurors to bring in verdicts based on facts which cannot be put in evidence is to be condemned. Such action violates Canon 29 which prohibits an attorney from rendering advice involving disloyalty to the law. An attorney may criticize case law or statutes and advocate changes in the law, but that is not the case we have before us. Here the attorney is advocating that the law be evaded. His letter attempts to induce the addressee and his friends, as future jurors in this attorney's suits, to bring in verdicts based on matters which the law forbids a jury a consider. This appears to be rendering advice involving disloyalty to the law and is condemned by Canon 29.
The committee has attempted to judge with considerable latitude the member's conduct in sending out such a letter because the letter seemed to show that said member was genuinely indignant and that his purpose in writing to the juror was only to correct impressions left by opposing counsel's charges. One of our committee feels that, though our committee is not in a position to judge whether the charges made against said member were proper, an attempt to defend one's self against improper charges, before one to whom the charges were stated, is not advertising even though some self-laudation was involved. It was further pointed out by another of our committee that though there did exist this element of self-laudation, the tone of the member's letter was much more one of self-defense than of solicitation. The committee nevertheless feels that the letter does incorporate elements which must be construed as self- laudation and indirect advertising and solicitation in violation of Canon 24, and that the remarks advising future jurors to act, contrary to law (on information given them by the writer of the letter) violate Canon 29. (9-0.)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 257 (1963)