Outside-the-law activities can be risky

By Diane Karpman

Karpman

Members of our beleaguered profession sometimes complain that law-yers can be disciplined for conduct that does not even remotely involve the practice of law. For example, a lawyer can be disciplined for a second DUI, because the conduct could “spill over” into the practice of law. In re Kelley (1990) 52 Cal. 3d 487.

A Florida lawyer is facing discipline for describing a judge as an “evil, unfair witch,” among other uncharitable comments, on a blog. Florida State Bar v. Conway, No. SC08-326 (Fla.). A New York lawyer is facing a five-year suspension for criticizing a judge’s handling of a family law matter in an article he posted on the Internet. In the Matter of Barry L. Goldstein, No. 2006-10353 (N.Y. App. Div.). What about free speech, you may ask? Judicial criticism triggers special considerations if it involves comments about a sitting judge on a pending matter.

Then, there is a new State Bar Court review department case, In the Matter of Fahy, 05-O-05123, filed March 6, (see adjacent story) which might take your breath away. A lawyer is facing disbarment for conduct while acting as a civil juror. Deliberations in a medical malpractice case were taking far too long, and the lawyer-juror had to get back to his busy practice. (Don’t we all, that is, those who haven’t been laid off?) Taking matters into his own hands, “he told the other jurors that if the judge would not declare a mistrial, [he] would change his vote for the defense to break the deadlock…” (Id., p.2)

The lawyer-juror did so, but the jury foreperson notified the judge of the expressed reason for the vote change. Of course, the judge then asked questions of each juror, but the lawyer denied changing his vote to end the deadlock.

Then, it seems that the lawyer was struck with a bolt of truth and a declaration was executed, which said: “I changed my vote so that the deliberations would finally come to an end…” (Id., p.3) At the State Bar trial, the lawyer suggested that his signature was forged, mistaken or that he was tricked into signing it. Obviously, it was the court’s failure to declare a mistrial that caused the problem. Now, this is probably the first time in history that a lawyer blamed a judge when something went wrong.

The review department noted that the Judicial Council recognized that jury service is an important civic responsibility and is the cornerstone for the fair administration of justice. The lawyer’s conduct voided the verdict, and “his deceit of the trial judge and exploitation, for personal reasons … demonstrate respondent’s unfitness to continue to be licensed as an attorney…” (Id. p.2) Disbarment was further justified because of a significant recent prior discipline and lack of remorse.

Lawyers are officers of the court. We are the flag bearers and the cheerleaders. You better believe I went and found my recent jury summons. I will bring my pompoms and follow instructions, but as is consistent with Australian voting principles, I will also keep my reasons to myself.

• Diane Karpman, a legal ethics expert, can be reached at 310/887-3900 or at karpethics@aol.com.