Changing his vote during jury duty so he could get back to his busy law practice has come at a high price for San Francisco solo Francis Fahy and possibly placed him into a category unique unto itself.
A California State Bar Court review panel on Friday upheld disbarment (.pdf) for the 19-year lawyer after finding he violated his oath as a juror and then compounded the problem by lying to the trial court judge when confronted.
"As the evidence clearly shows, respondent's acts went beyond dereliction of his duties as an attorney to follow the law when sworn to act as a trial juror," Ronald Stovitz, a retired State Bar Court presiding judge, wrote 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 respondent's unfitness to continue to be licensed as an attorney."
Stovitz indicated Fahy might be the first California lawyer ever disbarred for misbehaving while serving as a juror. The only remotely similar cases, he noted, involved an attorney who tried to affect the outcome of voir dire and another who attempted to influence a juror hearing his criminal case.
The state high court also will have the last word on Fahy's recommended disbarment.
Fahy, who could not be reached Monday at three different telephone numbers listed in his name, was one of 12 jurors in a medical malpractice case tried in 2004 before San Francisco Superior Court Judge David Ballati. On April 26, 10 days after deliberations began and nearly a month after the trial got under way, Fahy changed his vote and broke an 8-4 deadlock that favored a doctor accused of negligence while performing laser eye surgery.
The jury forewoman brought Fahy's vote change to Ballati's attention, but Fahy said he had acted only within the court's instructions and trial evidence. Ballati entered a defense verdict after finding no proof of misconduct.
The plaintiffs lawyer moved for a new trial, though, and filed a motion containing a declaration in which Fahy admitted he felt the doctor had been negligent, but changed his vote because the long trial was hurting his law practice.
"I changed my vote," Fahy said in the declaration, "so that the deliberations would finally come to an end and I could return to the office."
When confronted by Ballati, the State Bar Court ruling said, Fahy contended that "his signature was forged, signed by him by mistake or he was tricked into signing it." The judge granted a new trial.
Early last year, State Bar Court Judge Lucy Armendariz recommended Fahy be disbarred. The review panel agreed on Friday, saying the "inescapable" conclusion was that Fahy violated his duties as a juror.
"The harm to the parties and to the fair administration of justice," Stovitz wrote, "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," the judge continued, "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."
State Bar Court Judges Judith Epstein and Catherine Purcell concurred.
Adding to Fahy's problems, the court noted, was the fact that he's currently serving a two-year suspension mandated by the State Bar Court for misappropriating more than $2,700 in trust funds from a former client. The suspension began in July 2007.
"What is of great concern is respondent's continued avoidance of responsibility for his misdeeds," Stovitz wrote. "Rather than focus on his own behavior to recognize his ethical misconduct and to seek to avoid it in the future, respondent has in his defense in the prior matter attacked others involved in the State Bar Court proceeding."
Stovitz noted that Fahy has filed a federal civil rights suit against the State Bar Court judges, the State Bar lawyers who prosecuted him and the justices of the California Supreme Court, who upheld Fahy's suspension in 2007.
Friday's State Bar Court ruling held that Fahy cannot resume practicing law until he undergoes a formal reinstatement proceeding that proves by clear-and-convincing evidence he has been rehabilitated, has moral fitness and has retained the ability to practice law.
"Manifestly, looking at respondent's prior and current proceedings," Stovitz wrote, "he has demonstrated that clients, courts and the legal profession are at serious risk of future harm should he be allowed to continue to practice."
Fahy, a graduate of San Francisco Law School who was admitted to the Bar in 1990, was prosecuted by State Bar Supervising Trial Counsel Donald Steedman.
Steedman said Fahy's case is the first reported one to deal with a lawyer's misconduct while serving as a juror. "Being a juror is an important part of our democratic system and our judicial system and it's a sacred trust. And so it's significant misconduct to do what he did."
Friday's ruling is In the Matter of Fahy, 05-0-05123.