Lawyers should be mindful of their ethical duties in every phase of cases involving juries, as illustrated below mainly by reference to the American Bar Association’s (ABA) Model Rules of Professional Conduct (MRPC). All 50 states have adopted some form of the MRPC.
Pretrial Publicity. Under MRPC 3.6 “Trial Publicity”: “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” MRPC 3.6(a), although there are several exceptions to that principle, see MRPC 3.6(b) and (c). That principle applies not only to a traditional press conference but also may apply to legal blogging and other public commentary by a lawyer. See also, e.g., ABA Standing Committee on Ethics and Professional Responsibility (SCEPR) Formal Opinion No. 480 (“Confidentiality Obligations for Lawyer Blogging and Other Public Commentary”) (March 6, 2018).
Investigating Potential and Seated Jurors. Many methods of investigating potential and seated jurors are allowed. However, under ABA MRPC 3.5 “Impartiality and Decorum of the Tribunal” and MRPC 4.1 “Truthfulness in Statements to Others”, a lawyer or a person acting on behalf of a lawyer should not ask a potential or seated juror for access to information that the juror has not made public, such as information on restricted (nonpublic) social media websites, see MRPC 3.5(b), nor engage in false statements of material fact to obtain access to that information, see MRPC 4.1(a). See also, e.g. ABA SCEPR Formal Opinion 466 “Lawyers Reviewing Jurors’ Internet Presence” (April 24, 2014). Some jurisdictions go beyond Formal Opinion 466 in prohibiting forms of investigation that trigger notifications to the potential or seated juror in some circumstances.
Jury Selection. Under MRPC 8.4 “Misconduct”, a lawyer must not “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” MRPC 8.4(g) (although the rule permits legitimate advice and advocacy and does not limit accepting, declining, or withdrawing from a representation). That principle applies to a lawyer’s use of peremptory challenges in the jury selection process. See also, e.g., ABA SCEPR Formal Opinion No. 517 “Discrimination in the Jury Selection Process” (July 9, 2025).
Conduct Intended to Improperly Influence a Potential or Seated Juror Before or During a Jury Trial. A lawyer must not “seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.” MRPC 3.5(a). Nor may a lawyer engage in unauthorized contact with such a person during the trial. MRPC 3.5(b). Under MRPC 3.4 “Fairness to Opposing Party and Counsel”: A lawyer also must not engage in improper statements before a jury, such as alluding to matter that will not be supported by admissible evidence, asserting personal knowledge of the facts when not serving as a witness, or stating a personal opinion on the credibility of a witness or a criminal defendant’s guilt or innocence. MRPC 3.4(e).
Post-Trial Communications with Jurors and Prospective Jurors. A lawyer shall not communicate with a juror or prospective juror after the jury is discharged if prohibited by law or court order; the juror has made known to the lawyer the juror’s desire not to communicate; or the communication involves misrepresentation, coercion, duress, or harassment. MRPC 3.5(c)(1)–(3).
The foregoing list or principles is not intended to be a statement of the law, as opposed to referencing the MRPC as a model rule and guide. Nor is the list intended to be exhaustive. Finally, the list is not intended to encompass the related but not identical topic of a court imposing sanctions for a lawyer’s misconduct relating to a potential or seated juror.