Lawyer disbarred for changing vote solely to return to his busy practice

From Volokh (link to Volokh Conspiracy):

The case is In re Fahy (Cal. Bar Ct.); here’s an excerpt from an affidavit signed by the lawyer to support a motion for a new trial:

I was convinced from the outset [of the medical malpractice trial] that [the defendant] had violated the standard of care in his care and treatment of the [p]laintiff…. During the trial that was supposed to last only 2-3 weeks, I maintained a busy law practice. As the trial continued into its 4th week, problems at work continued to mount as most of the day was devoted to my being a juror. Deliberations were a nightmare…. It was becoming very apparent that even if the other jurors were to vote in favor of the [p]laintiff on the issue of liability, that lengthy discussion would take place on other issues …

As a result, I advised my fellow jurors that I would change my vote if Judge Ballati failed to declare a mistrial after he was advised that the jury was deadlocked because there was no way I could afford to spend another week away from the office …

When I arrived on Monday, I changed my vote to favor [the defendant] even though he was liable for what happened to the [p]laintiff. I changed my vote so that the deliberations would finally come to an end and I could return to the office….

The court’s legal conclusion:

[T]he harm to the parties and to the fair administration of justice is clear and serious when respondent disregarded his duty to vote as the facts and judge’s instructions guided him, and instead voted as the convenience of his law practice swayed. To be sure, jury service for busy citizens of all occupations or with family responsibilities can be difficult, even burdensome, at times. Yet it is the accepted duty of citizens to serve, subject to the statutory provision for excuse for undue hardship. Moreover, the Judicial Council has recognized that jury service is an “important civic responsibility,” requiring court and staff use of all necessary and appropriate means to ensure that citizens fulfill this duty. Surely, respondent, as a practicing attorney at the time, was keenly aware of the role which an effective jury system serves in the fair administration of justice.

Respondent’s violation was not a technical one. As the Court of Appeal and the State Bar Court hearing judge each found, respondent’s vote was decisive in breaking the jury’s deadlock. Patently, his change of vote to avoid continuing to serve as a juror voided the verdict he rendered and required the parties, their counsel and the courts to bear the additional costs, time and burdens of appellate and further trial court proceedings.

Because of this misconduct, because of Fahy’s apparently deceitful responses to the court when questioned about this, and because of Fahy’s recent disciplinary record, and because of Fahy’s lack of acceptance of responsibility, he was disbarred. For more, see this S.F. Recorder article.

Of course, if Fahy had only remained quiet about his true motivation (something he initially revealed to his fellow jurors during deliberation) he would have gotten off scot-free (though that of course does not excuse his behavior).

One of the comments notes — and I think I agree — that the point of a jury is to administer “justice” without consequences. This lawyer made it clear that he thought this was not the “quick and speedy trial” the defendant deserved. I appreciate that the lawyer wasn’t behaving entirely ethically, but if we start holding jurors accountable for their votes, it seems to undermine the process and possibly to eliminate the point.

The problem with the Bar’s action here is that it motivates lawyers to do whatever they possibly can at the front end (at voir dire) to get out of the jury, because once they’re on their entire professional life is on the line.

Effectively Fahy could have used any number of lies to avoid repercussions in this case. He could have twisted the truth at voir dire to avoid his civic duty in the first place. He could have claimed he felt the trial was not speedy enough, and was changing his vote for cause unrelated to his practice. It seems like the Bar disciplinary control over anything tangentially related to the legal profession. But by doing so it sets a precedent that will incentivize any professionals who feel they have an urgent duty to their clients (a more urgent duty than to their city) to avoid jury duty entirely. This undermines the point of having a jury “of our peers.” I think the Bar went too far.

I agree that lawyers should be held to a higher standard, and absolutely, if someone assumes a duty, they should complete it correctly.

But here the two audiences that hold lawyers accountable for our actions (clients, and everyone else) are in direct conflict. By punishing Fahy, the bar says: Lawyers are more accountable to everyone else than we are to clients.

This is fine, and I concede that it’s a just and defensible position. Except that some lawyers charge big money for their services. I remember reading last Spring that someone had broken $1000/hour. That’s more than I pay in rent.

If I were paying that much for someone I trusted to take care of the most important issue in my life, I would be shocked to discover that he was serving on a jury for a month while I was hoping he would settle on my behalf, or otherwise work on my case.

Similarly, if I were paying that much to my lawyer and discovered that she was sitting idly while my opponent’s lawyer was serving on a jury, I would be less than thrilled. Wouldn’t the Bar discipline someone if they discovered that he was wasting everyone’s resources by serving on a jury?

The overall lesson here is this: If you accept a duty, you’re responsible for finishing it.

But a secondary lesson might be about who is our “master.” Lawyers are held to a higher standard. Our higher standard is to finish whatever obligations we accept. But sometimes obligations conflict–even, as here, when the conflict is a consequence of our own negligence. When there is a duty to complete an obligation incurred to one’s client which conflicts with a duty to complete an obligation to one’s society, society wins. The incentive is to avoid accepting obligations to society.

Arguably Frahy could still have completed his obligation to his client, but we don’t know that. I’ve not served jury duty before, but jurors must be restricted from taking phone calls for the duration of the trial. Who knows what was happening with his clients during that time? I also don’t know exactly how voir dire works, but unless someone with clients can say (flat out, no questions asked, and expect to be dismissed immediately): “I can’t serve, I have prior obligations to my clients,” the incentive structure here just seems perverse.

Advertisements

Leave a comment

Filed under Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s