Monday, March 9, 2009
Panel Urges Lawyer’s Disbarment for Misconduct as Juror
By STEVEN M. ELLIS, Staff Writer
The State Bar Court Review Department on Friday recommended that a San Francisco attorney be disbarred for serious misconduct while acting as a civil trial juror.
A State Bar Court hearing judge found that Francis T. Fahy voted to find a defendant not liable for negligence in order to end a likely jury deadlock so that he could return his attention to his law practice, lied to the trial judge about his verdict and disrespected the courts.
Fahy, who was placed on a two-year active suspension in 2007 for willfully misappropriating trust funds, was serving as a juror in a 2004 medical negligence case involving an ophthalmologist’s performance of laser eye surgery when he allegedly told other jurors he would change his vote if the trial judge did not declare a mistrial after deliberations stretched into a second week.
San Francisco Superior Court Judge David Ballati questioned jurors after the foreperson reported that “some jurors” had changed their votes solely to end the deliberations, but Fahy denied having based his vote on anything but the trial evidence and the court’s instructions, and Ballati entered a verdict for the defense.
The plaintiff’s counsel, San Mateo attorney Dan M. Himmelheber, subsequently sought a new trial, and introduced a declaration bearing Fahy’s signature indicating that Fahy had voted for a defense verdict solely to end deliberations and return to his practice.
However Fahy—despite Himmelheber’s testimony that he had drafted the declaration with Fahy’s input and obtained the signature from Fahy after driving to his house—disavowed the statements, even though Fahy acknowledged the signature appeared to be his.
Fahy contended the signature was forged, or obtained through trickery or a mistake, but Ballati determined that Fahy’s testimony was “obfuscating and not credible,” and ordered a new trial, which the Court of Appeal upheld.
After having recommended discipline two months earlier over Fahy’s misappropriation of client funds in 1999 or 2000, the State Bar in April 2007 began formal disciplinary proceedings charging Fahy with failing to comply with his statutory duties as a juror, committing moral turpitude by lying to Ballati and attempting to influence the jury for an improper purpose, and failing to maintain respect for the courts by his juror misconduct.
The hearing judge concluded there was no evidence to support the charge Fahy attempted to influence other jurors and that the lack of respect charge was duplicative of the other alleged misconduct, but found Fahy culpable of the other charges, rejecting Fahy’s contention that his signature had been forged.
Fahy appealed to the Review Department, but the department—in an opinion by Retired Presiding State Bar Court Judge Pro Tem Ronald W. Stovitz, sitting by designation—upheld the hearing judge’s findings despite concluding that the hearing judge should have found Fahy culpable of the lack of respect charge without assessing added discipline.
Citing Fahy’s “significant, recent actual suspension” imposed by the Supreme Court in July 2007, Stovitz wrote that the hearing judge’s recommendation of disbarment was “well merited,” and the Review Department recommended that Fahy’s name be stricken from the roll of attorneys.
The department also recommended that Fahy not be allowed to resume practice without undergoing a formal reinstatement proceeding proving his rehabilitation, moral fitness, and learning and ability in the law by clear and convincing evidence.
“What is of great concern is [Fahy’s] continued avoidance of responsibility for his misdeeds…. Rather than focus on his own behavior to recognize his ethical misconduct and to seek to avoid it in the future, [Fahy] has in his defense in the prior matter attacked others involved in the State Bar Court proceeding and again, in the present matter, 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.
“The purposes of disciplinary proceedings are not to punish [Fahy] but to protect the courts, the public and the legal profession from those members of the bar who are unable or unwilling to discharge their duties ethically…. Manifestly, looking at [Fahy’s] prior and current proceedings, 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 could not be reached for comment.
Judges Judith A. Epstein and Catherine D. Purcell joined Stovitz in his opinion.
Copyright 2009, Metropolitan News Company