Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Overlooking the Fundamentals is Always a Dangerous Thing:  Attorneys can be Disciplined for Failing to ‘Uphold the Law’

 

One of our fundamental obligations as attorneys, if not the fundamental obligation, is to support the law. (Bus. & Prof. Code § 6068 [“It is the duty of an attorney to do all of the following:  (a) To support the Constitution and laws of the United States and of this state.”].)  This is not simply an aphorism devoid of meaning, and we are bound by this obligation even when not acting as attorneys, as the lawyer in In the Matter of Fahy (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 141 (opinion here) learned in the worst of ways.  Therein, attorney Fahy was sworn in as a juror in a medical malpractice case thereby undertaking the obligation to “well and truly try” the case based solely on the evidence and the court’s instructions.  However, despite having concluded that the defendant was liable for the plaintiff’s injuries, he changed his vote in order to break the jury deadlock, thus bringing about a defense verdict, because he wanted to return to his busy law practice.  When later questioned by the judge about having changed his vote, Fahy stated that it was based only on the evidence and on the court’s instructions.  In a post trial motion for a mistrial based on Fahy’s conduct, the plaintiff submitted Fahy’s declaration wherein he stated that he changed his vote so that he could return to his practice.  The court granted the mistrial, and it was affirmed on appeal.  In disciplinary proceedings before the State Bar court, the trial court found, among other things, that Fahy had violated his duty to uphold the law as required by Bus. & Prof. Code § 6068(a), see above.  The Review Department affirmed this conclusion, describing it as “inescapable” that Fahy was “culpable as charged.”  Not only had Fahy inappropriately changed his vote, his was the decisive vote in breaking the jury’s deadlock that resulted in the defense verdict which was later voided by the trial judge.  His misconduct “required the parties, their counsel, and the courts to bear the additional cost, time, and burdens of appellate and further trial court proceedings.”  The Review Department similarly agreed with the recommendation for Fahy’s disbarment agreeing that his conduct significantly harmed the administration of justice “even though he was not acting as an attorney in the case but as a private citizen.  Certainly, [Fahy’s] participation as a juror was at the heart of the work of the courts….”  This misconduct, coupled with his prior misconduct for willfully misappropriating funds from his client trust account, warranted disbarment.  Thus ended a 19 year legal career…by having overlooked one of the fundamentals.

 
--Luis E. Ventura
 
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**