Lawyer Disbarred for Switching Vote as a Juror Solely in Order To Return To His Busy Law Practice:

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).

Related Posts (on one page):

  1. More on Vote-Changing To Free Jurors from a Long Trial:
  2. Lawyer Disbarred for Switching Vote as a Juror Solely in Order To Return To His Busy Law Practice:

More on Vote-Changing To Free Jurors from a Long Trial:

My colleague Steve Yeazell, an expert on civil procedure (and a historian of civil procedure), writes this apropos the "Lawyer Disbarred for Switching Vote as a Juror Solely in Order To Return To His Busy Law Practice" post:

I am ... a little dubious about the less-noted part of the case -- the trial court's order of a new trial on the basis of Fahy's affidavit. I don't know the specific California law on this question, but the trend in the US has been to insulate juries from most internal scrutiny -- scrutiny, that is, that asks about why the jury came to the verdict it did, so long as, seen from outside, it's rationally defensible, as this one clearly was.

In a leading case, written by Learned Hand, the Second Circuit affirmed a defense verdict reached under the following circumstances: deadlocked 7-5 for the defense, the jury learned that one of its members' sons had just been killed in WWII. They agreed that the minority would vote with the majority so the member could go home to grieve, thereby producing a unanimous verdict. Held: no grounds for a new trial. Jorgenson v. York Ice Machinery Corp., 160 F.2d 432 (2d Cir. 1947): "Not only ought we not upset the judge's discretion in refusing to grant a new trial for such a reason; but, had he granted the motion ... we should not have sustained it."

Yes, the Fahy verdict is distinguishable, but not by a lot. And, even if the judge should not have granted a new trial, that doesn't speak to the disbarment order: it may be that for a lawyer-juror to rank his personal interests this high is a special problem. (And this was not Fahy's first brush with bar discipline.) But as you imply in your blog: one bets a lot of jurors throw in the towel after a week of deliberation and decide that the majority must be right. Is that really a terrible thing? The standard "dynamite" charge to deadlock jurors in fact encourages them to think about whether their fellow jurors maybe have it right.