Juror misconduct leads to disbarment recommendation

In a possibly unprecedented case, a San Francisco lawyer faces disbarment because while serving as a juror in a civil case, he changed his vote to break a deadlock in order to return to work. The State Bar Court review department recommended last month that FRANCIS T. FAHY [#147721], 60, lose his license for violating his duties under the law and committing moral turpitude by lying to the judge. The Supreme Court must rule on the recommendation.

Only two previous discipline cases involved an attorney’s misconduct toward the jury system, and neither involved similar actions. One case resulted in a 30-day suspension and the other drew disbarment for a lawyer who faced criminal charges and interacted with a juror during his trial.

Fahy already was suspended for misappropriating more than $2,700 in trust funds and for not properly maintaining those funds. He has been prohibited from practicing since February 2008.

He was selected as a juror in a 2004 medical negligence lawsuit filed against an ophthalmologist in San Francisco. After several votes, the jury notified Judge David Ballati it was deadlocked 8-4 in favor of the defendant; the judge instructed them to keep trying.

According to the review department’s findings, Fahy told his fellow jurors “that if the judge would not declare a mistrial, (he) would change his vote … to break the deadlock so he could return his attention to his law practice.”

The jury foreperson notified Ballati, who questioned each juror. Fahy told the judge he acted only on the court’s instructions and considered only the evidence. Without proof of juror misconduct, Ballati entered the defense verdict and dismissed the jury.

When the plaintiff moved for a new trial based on Fahy’s misconduct, the motion included Fahy’s declaration detailing his decision to change his vote so he could return to work. The plaintiff’s attorney, Dan Himmelheber, testified that after he drafted a declaration for Fahy, Fahy asked him to make some changes. When Himmelheber droved to Fahy’s house to get his signature, Fahy presented a retyped version of the original form bearing his signature.

In the declaration, he admitted, “I changed my vote to favor (the defendant) even though he was liable for what happened to the plaintiff. I changed my vote so that the deliberations would finally come to an end and I could return to the office.”

Although Fahy told Ballati the signature was his and the declaration appeared to be his, key facts were incorrect. He said the signature was forged, signed by him by mistake or that he was tricked into signing it. Ballati found his testimony “obfuscating and not credible.”

In addition to the misconduct the bar court found Fahy committed, he was charged with trying to corrupt the jury and failing to maintain respect for the courts. Neither the hearing judge nor the review panel upheld those charges.

Fahy, who declined to comment on his case, argued that he was precluded from offering exculpatory evidence and he contended that the court should believe his version of events.

The review department, however, found that Fahy’s actions were not only decisive in ending the trial but resulted in additional cost, time and burdens for the parties. His acts “went beyond dereliction of his duties as an attorney to follow the law when sworn to act as a trial juror,” wrote Judge Ron Stovitz for a three-judge panel. “Indeed, his deceit of the trial judge and exploitation, for personal reasons, of the very institution which underpins our system of litigation demonstrate (Fahy’s) unfitness to continue to be licensed as an attorney.”

Both the hearing judge and the review panel also found that Fahy acted in bad faith and for a corrupt motive. Stovitz also noted that rather than recognizing his misconduct, Fahy attacked the parties involved in the disciplinary proceedings.

“He has extended his disaffection with the State Bar and the State Bar Court by commencing a federal civil rights action against the justices of the Supreme Court, the judges of this court and the State Bar attorneys assigned to this matter,” he wrote.