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Legal Ethics

Calif. Lawyer Disbarred Over Jury Vote

Posted Jul 23, 2009 3:48 PM CST
By Martha Neil

In a unanimous decision, the California Supreme Court has disbarred a San Francisco sole practitioner who changed his vote to break a deadlock while serving on a jury, after a monthlong trial and 10 days of deliberation.

The solo, Francis Fahy, then compounded his situation by allegedly lying to the trial judge about the reason for his vote, according to a Recorder article reprinted in New York Lawyer (reg. req.). He reportedly told fellow jurors that he broke the deadlock in order to end the trial and get back to his law practice.

His 2004 vote resulted in the acquittal of a defendant physician in a medical malpractice case.

Denying Fahy's petition for review of a California State Bar Court recommendation that he lose his law license, the supreme court voted 6-0 yesterday to strike him from the state roll of attorneys, reports the Metropolitan News-Enterprise. Chief Justice Ronald George did not vote because he was on vacation.

In 2007, Fahy was put on a two-year active suspension for willfully misappropriating trust funds, the publication notes. He did not return a News-Enterprise phone call.

It appears that Fahy may be the first lawyer in state history to be disbarred for misconduct while serving on a jury, reports a March article in the Recorder. It discusses a California State Bar Court opinion (PDF) that Fahy should be disbarred.

At last report, Fahy had filed a federal civil rights suit over the attorney discipline case. His failure to acknowledge and correct his misconduct was one reason why the bar court found disbarment to be merited, notes the News-Enterprise.

Fahy was admitted in California in 1990.

Comments

1.

That Lawyer Dude
Jul 23, 2009 9:09 PM CST

Fahy is dispicable, and what he did was worse than that, but Judges have decided that lawyers should be eligible to serve on juries and they need to understand that jurors can use their votes anyway they like.

How interesting that judges who scream for us to protect their independence would use disbarment in this situation. Will they ask us how we vote in an election and if we had a good reason to vote the way we did?

I am not saying Fahy should have a license, he committed enough sins after changing his vote for the bar to take his license,  I am however afraid that this opinion sets a number of bad precedents.

As many judges have told me, when they just refuse to uphold the law, “Appeal me, that is what higher courts are for.”  Disbarment is not meant for the votes taken while a lawyer serves as a juror.

If lawyers can lose their licenses for doing what Fahy did, does that not mean they have a “higher” ethical obligation while on jury duty than other jurors? If issues arise, doesn’t that make them more expert on issues of ethics and maybe other issues than other jurors?

Additionally, the portion of this decision that focuses on why Fahy changed his vote may chill someone’s vote in a jury room. If a contentious deliberation is going on, I want to know that someone is not going to refrain from taking an unpopular position because they are afraid that a court may later look at the decision and criticize it or even disbar them.

Fahy did enough other things wrong in this case to disbar him for those reasons, his vote however should not have even been mentioned other than as prelude for his lying and other assinine actions.

Two wrongs don’t make a right. The bar and the court should have stayed away from this one. It sends the wrong message, it is the wrong result and like all bad cases it sets the stage for further bad law.

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2.

Chris
Jul 23, 2009 10:11 PM CST

I agree 100% with “That Lawyer Dude.” It seems funny to me how judges routinely order jurors to go back into the jury room and deliberate more when there is a deadlock.  What do they think happens when the jury does this?  The hope is that one or more jurors will CHANGE THEIR MIND!!! 

The California disciplinary authorities should never have been involved at all.  They overstepped their boundaries and decided that it was prudent to go inside the head of the lawyer and ascertain why he changed his verdict.  Let’s have all jurors go before the california supreme court and explain why they voted how they did.  If we don’t like the answers we’ll fine them.

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3.

tr
Jul 24, 2009 7:09 AM CST

the state bar disciplinary committees in most states are overstepping their bounds and grabbing out for, reaching into, brand new territory, new ground.

Why?

FOR MONEY!

You see, the disciplinary committee members are also able to make money off their experience as disciplinary committee members once they are no longer on the committee—they can make money DEFENDING other people accused of violating the ever-expanding code of “ethics” that is trapping more and more starving solos.

The broader the reach of the disciplinary committees, the more precedent that subsquent disciplinary committees will have, the power they will have to reach into new fields.

But finding ever more and more “ethical breaches” to discipline for, the present discipline committee members are able to expand their OWN practices later on after they are no longer on the committee.

This practice is emblematic of what is happening to the legal profession as the supply of lawyers grows and grows, exceeding the demand for lawyers. It is the classic race to the bottom.

As more and more lawyers fight over the scraps, we turn on each other, devouring our own “brothers of the bar” like cannibals.

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4.

WCD
Jul 24, 2009 9:24 AM CST

Disagree completely with TLD and Chris. There’s no conceptual difficulty in requiring jurors to come to a decision, and even go back in several times to continue deliberation, and saying that SOME reasons for ending deliberation are prohibited. We used to allow peremptory jury challenges for any reason whatsoever; now,you can’t challenge a juror solely because of his race. If a juror stated in the jury room: “oh, heck, it’s just a ____________(fill in your favorite minority group) and they’re all guilty as sin”—an infringement on jury independence to say that’s unacceptable? That a verdict reached on that account should not be rejected by the judge when he polls the jurors?
Fahy’s crowning stupidity lay in announcing his bogus reason to the other jurors.

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5.

ag
Jul 24, 2009 11:46 AM CST

Its interesting that they disbarred him for allegedly lying to the judge.  I think lawyers misrepresent the truth more often than not.  On the surface, if anything, the misuse of trust funds could or should be a greater reason for disbarrment, not changing his mind in a jury vote.  I think the California bar goofed on this one and should be sued.

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6.

sb
Jul 24, 2009 11:50 AM CST

WCD, I think you’re missing the point.  Although there was apparently some problem with the jury’s decision, individual jurors who weren’t attorneys probably weren’t subject to any type of corrective action.  By contrast, the legal profession must uphold a higher standard of candor to the court, respect for the legal process, and honesty to and with judicial officers.  These were the reasons that the corrective action was taken against Mr. Fahy.  In other words, what may be acceptable or tolerable from a member of the general public may not be acceptable or tolerable from a member of the bar.

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7.

sb
Jul 24, 2009 11:56 AM CST

To: ag—Typically, on an attorney disciplinary matter your past infractions compound your current disciplinary measures.  In other words, Mr. Fahy probably wouldn’t have been disbarred for this infraction had he not had the previous infraction already on the books.

Also, believe it or not, there aren’t many ethics violations more serious than lying to the court.  Regardless of the public’s perception of attorneys, there is a nice thick line between zealous advocacy, which may include “spinning” the fact situation in a case, and misrepresentation of the facts.

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8.

George Patsourakos
Jul 24, 2009 11:59 AM CST

The California Supreme Court made the correct decision in disbarring a lawyer who changed his vote to break a deadlock while serving on a jury, “in order to end the trial and get back to his law practice.”

A juror—and especially a lawyer juror—should know better than to take this self-centered action, rather than basing his vote on the evidence presented in the case.

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9.

That Lawyer Dude
Jul 24, 2009 12:40 PM CST

To comment 4 I have no problem with judges sending jurors back to try again, my problem here was that he can change his vote for any reason, it may change the outcome of the trial verdict if it was an improper reason, but that would not affect him as a person, it would effect the case outcome.

This decision allowing his vote to be a reason for disbarment as opposed only to his lying (and if you read the decision he not only lied but then gave an affidavit that he changed his vote so the Plaintiff could get a new trial then lied about giving that affidavit etc etc) could have a chilling effect on the votes of other lawyers or people whom the court may effect financially.

If a closet racist gets on the panel, and announces his racial hatred as a reason for a vote, the court is well within its rights to have a mistrial and to grant a new trial. IT is not within its rights to jail the racist nor suspend him from working in his chosen occupation, unless that person is a lawyer.

A court should only be allowed to punish lawyers for their behavior when engaged in the practice of law, or in certain other circumstances. This is not one of those circumstances. The overly broad decisioin sets lawyers apart from other jurors, it can be used to allow courts to look at motivation of a juror and punish for that motivation hence chilling the independence of the jury.
I repeat, the conclusion seems correct, Fahy ought to be well punished. It is the reasoning which truly bothers me and for which the Civil and Criminal Trial bars ought to take tremendous exception to.

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10.

WCD
Jul 24, 2009 1:00 PM CST

6 and 9:
I agree that, by definition, it would be impossible to impose the disbarment sanction on another juror who was not a lawyer. Very hard for me to see that this is, in some way, discriminatory, or unjust. (if I’ve misinterpreted your responses, let me know). But shoot—we are officers of the court, and the license to practice law is a privilege. That this privilege—which sets us apart from those who are NOT licensed to practice law—may be revoked in these circumstances is not unreasonable. If anything, it simply reduces Mr. Fahy to the same, not disparate, circumstance as all the non-lawyers on the jury panel, i.e. now he can’t practice law.

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11.

WCD
Jul 24, 2009 1:12 PM CST

6 and 9:
On re-reading your responses:
6: I agree wholeheartedly with what you have written. My initial entry was in response to 1 and 2, which were taking a different tack. 1, in particular, seemed to be arguing that looking behind a jury vote for any reason was an infringement on juror independence. It clearly is not, whether lawyer or non-lawyer.
9: I think you inadvertently hit on the issue, in your phrase “or in certain other circumstances”. Yes, darn right—the Bar already recognizes that there are circumstances outside the “practice of law”, however that term is construed, that impact one’s license. Child support arrearages? Here in the great state of CA, that alone can be reason for discipline, but the relationship of one’s alleged failure to support one’s children to the practice of law is, um, kinda tenuous. A non lawyer with child support arrears is not prevented from peforming his job (although his check may be garnished). What exactly are the range of “other circumstances” to which you refer, and why is not this one one of them. You state that the result here was OK, but that the “reasoning…truly bothers me”. What about this reasoning is problematic?

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12.

That Lawyer Dude
Jul 24, 2009 9:40 PM CST

Comment 10 & 11 WCD:
What other circumstances? Well a felony conviction for example for a crime (say assault) which is not encompassed during the work the lawyer does. A lawyer who goes around in public defaming the system (Think the lawyers in Tawana Brawley matter 22 years ago)(note I said defaming not criticizing.)

As for what I feel is problematic:
I think both my comments are clear (1 & 9.) I am disturbed that the committee disciplined him for his vote as well as for his later lies or any of the other shenanigans he pulled.

I have no problem with the judge looking into the jury vote after their was an allegation of wrong doing. I have no problem with the judge overturning the verdict in that circumstance.

My problem is in disbarring the attorney in any part for his vote on the jury. The fear is what will happen in the next step, what if the lawyer juror votes to nullify a law.?

Most courts have held that the jury can do this without penalty, but it is wrong. Does the lawyer juror who votes to nullify, risk his license because he “should know better?”

Even if we were to agree that it shouldn’t happen in an nullification situation, if you were a lawyer/juror, would you chance it? Does this mean that lawyers should now not be on a jury if they will not nullify a law they and the other jurors feel is unjust because they fear their license is in jeopardy soley because of the vote they cast?

Playing with a juror, whether you be a litigant, a judge , an employer or bar counsel is a dangerous thing. Anything that might chill a juror’s discretion in carrying out his duty is destructive to our system of justice. Jurors like Jurists need to be independant of outside pressure. Bar counsel and the court have, by finding even part of this disbarrment stems from the jury vote itself, now made it dangerous to put any lawyer on a jury. Any thinking lawyer/juror who is asked, if he can decide the case fairly without any thought to other things that may interfere with his vote cannot safely answer yes he will. He should answer that he fears repercussions from the bar if they do not feel he exercised his vote properly.

Sorry, we lose too much and gain too little in the outcome of this case especially since it could have come out with the same result without the damage it does to an independant jury.

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13.

B. McLeod
Jul 25, 2009 12:55 AM CST

When first I heard this complaint was going up, I thought he would buy it for his subsequent conduct of seeking out the litigant he screwed, to tell them why they should attack the verdict.

It is surprising, and a little unusual, to see how the court actually pinned the tail.  In particular because, if Fahy had but the sense to keep it inside his head instead of shooting off his mouth, nobody would have ever known the reason for his vote.  This action, on this basis, is no safeguard for the public or the legal process.  The next Fahy will just keep his mouth shut.  Same screwed up verdict, but no disciplinary case.

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14.

WCD
Jul 25, 2009 11:21 AM CST

12: I disagree with you on at least one point, and possibly another. Taking the “possibly” point first:

It is established that a lawyer can be disciplined for matters not within the umbrella of “the practice of law”, no matter how loosely defined. You appear to agree, by citing conviction for assault and the Brawley fiasco. I would add, in California, having multiple DUIs, along with the example of child support arrearages I mentioned earlier. In addition, participation in jury deliberations, as part of actual litigation, is substantively far more closely related to the practice of law than DUIs, assault charges or child support arrearages. It constitutes active participation in a key part of the process by which our society applies the law.

IIf you agree that there is nothing inherently or conceptually wrong with disciplining a lawyer for certain conduct outside of the “practice of law”, then we go to the second point.

The principle example of what needs to be preserved, in your view, appears to be the right to engage in juror nullification without professional consequence. I profoundly disagree, although I am sure that you could pose some fact patters of jury nullification that would be inherently sympathetic.

But look: as lawyers, we take an oath to uphold the law, not to nullify it. Doing so is a condition of receiving the many benefits and perks that come with a license to practice law. And that license is a privilege. “This is the life we have chosen”—a proverb that applies not only to the Mafia, but also admission to practice. If you don’t want to uphold the law, or limit yourself to modifying or reversing it within prescribed channels, oh well.

Certainly, we are not prohibited by our oath from arguing in good faith for a reversal or modification of existing law, either strictly in our capacity as lawyers or in commenting generally on society—the proverbial “letter to the editor”. But what we are not permitted to do is to decide—in the limited role as a determiner of fact on a jury—that we will vote to nullify notwithstanding the proved facts, because we disagree with the statute or caselaw in question. This fundamentally subverts the system that we have.

There are places to attack a law, in the legislature and in legal argument by the parties’ attorneys to the court. The jury has a very limited role in our system, which is to determine fact. I believe very strongly that if jury nullification were carried out on a wide scale, it would have the practical consequence of bringing jury trials into disrepute and (except where required by the Constitution) moving us predominantly toward bench trials. Nullification on a wide scale has not occurred, but I see no reason to protect lawyer-jurors from discipline for their vote to nulify. I do not see that imposing such discipline implicates jury independence.

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15.

jake
Jul 25, 2009 7:07 PM CST

An incredibly stupid move. He had the right to change his vote without discussion. Considering his status as a juror I would accept any vote he submitted for any reason.  That’s what the jury is all about. I would still rather not allow judges to punish or reward jurors, but crossing that with the duty of candor to the tribunal is a bad mix. He could have legitimately accomplished his goals without disclosing his motivation for changing his vote or being dishonest to the court. Bad call.

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16.

That Lawyer Dude
Jul 25, 2009 8:48 PM CST

I guess I see a jurors role as more than you do. I understand that nullification is inherently an American institution (John Peter Zanger) and a juror’s job as sacrosanct. I also believe that there are other actions a juror can take that may bring the juror under scrutiny if that juror is a lawyer which would now make me hesitant to put any lawyer on a jury.

I would also argue for a cause challenge as the potential lawyer/juror is now no longer able to say he will consider his vote without fear of outside influence.

I guess we will agree to disagree that it was an overreach that was unnecessary to reach the goal that the Bar had, that is disciplining an apparently very bad lawyer.

As for comment 15, I am not (nor do I think anyone here) ought to argue that what Fahy did was right. If that information came out during a trial I presided over, I would have overturned the verdict. That as Comment 13 says he sought out the plaintiff, maybe the only good thing he did.
deciding to break a deadlock to get out of further service should never be tolerated. It just cannot be punished in MHO by disbarrment.

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17.

B. McLeod
Jul 26, 2009 1:37 AM CST

Personally, I have not left a colleague on the jury, even though I had to use a peremptory.  You just know they’re going to be sitting there the whole time, worrying about the billables they’re losing and what kinds of disasters are going on back at the office that they’re not there to cover.  I have also known some pretty decent trial lawyers who did allow lawyers to be seated on their juries.  I think there is a school of thought that if the lawyer in the venire pool is a capable one, it can be a safeguard against a wild jury result.

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18.

Harry
Jul 27, 2009 10:11 AM CST

So should future lawyers summoned for jury service try to be excused because they fear disbarment as a result of their service?

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19.

LALawyer
Jul 28, 2009 12:39 AM CST

Regardless, of Mr. Fahy’s actions outside of his jury vote, the truth is this should never have happened. A lawyer should not be allowed on a jury for many reasons and the Bar has just added another.

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20.

LALawyer
Jul 28, 2009 1:19 AM CST

This is in response to 12: & 14: comment on jury nullification. First, I am a true believer of jury nullification who is well aware of CA Sup. Ct.‘s rulings on the subject. As a result, when received a jury duty summons I was prepared to tell the court that there were two reasons for my being excused if I was called for a criminal trial.

The first is that even though I’m a rather new member of the bar, that my experiences( working as an intern for the fed pd in Las Vegas as well as two very small cases I took as a defense attorney )have made it impossible for me to be impartial in a criminal trial for many reasons I would explain if necessary.

Secondly, I was prepared to ask the judge to allow me to approach so I could explain my belief in nullification and to cite People v. Williams (2001) as precedent to excuse me for such belief. I believe Mr. Fahy’s case would strongly favor this 2nd point so that lawyer/juror nullifying as an issue could be snuffed out during jury selection.

FYI I called in twice and in the 3rd day was told my service was done.

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