Metropolitan News-Enterprise


Thursday, July 23, 2009


Page 1


S.C. Orders Lawyer Disbarred for Misconduct as Juror

Justices to Determine Whether Partial Stay Tolled Five-Year Period to Bring Case to Trial


By a MetNews Staff Writer


The state Supreme Court yesterday ordered that a San Francisco attorney be disbarred for serious misconduct while acting as a civil trial juror.

The justices, at their weekly conference in San Francisco, voted 6-0 to deny Francis T. Fahy’s petition for review of a State Bar Court recommendation that he lose his license, and ordered that he be stricken from the rolls of California attorneys. Chief Justice Ronald M. George was absent and did not participate.

A State Bar Court hearing judge found that 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. The order was affirmed on appeal.

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.

The Review Department upheld the hearing judge’s findings, and further found that disbarment was “well merited,” particularly in light of the prior discipline.

Retired State Bar Court Presiding Judge Ronald Stovitz, sitting on the review panel by assignment, wrote:

“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.”

Fahy did not return a MetNews phone call.

In other conference action, the justices:

•Declined a request by Blue Cross of California, Inc. and Wellpoint, Inc. to depublish Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594. The ruling by this district’s Div. Three allows Los Angeles Superior Court Judge David Mintz’s widow to sue Blue Cross for negligence in the judge’s death from cancer, on the theory the insurer breached its duty of due care by refusing to cover a potentially successful treatment it determined to be experimental.

•Agreed to decide whether a partial stay, issued as part of a court’s active management of a complex or coordinated action, tolls the five-year limitations period for bringing cases to trial.

Div. Five of this district’s Court of Appeal ruled 2-1 on March 23 that “prosecution” of an action under Code of Civil Procedure Sec. 583.340(b) encompasses all steps in a case. The statute generally excludes from the five-year period all times during which prosecution is stayed or enjoined.

Justice Richard M. Mosk, joined by Justice Orville A. Armstrong, said Los Angeles Superior Court Judge Carolyn Kuhl erred when she included time which a discovery stay remained pending in concluding that an action against an alleged sender of “junk faxes” was not brought to trial within five years.

Mosk said reversal was required because “prosecution” was “a broad concept encompassing all of the various steps in an action, including, but not limited to, pleading, discovery, and law and motion.”

Presiding Justice Paul Turner dissented. He questioned whether the trial court’s management of the action—during which many pretrial activities were completed—could be considered a stay. He argued that even if something akin to a “partial stay” existed, it still would not toll the limitations period under current statutory language.

 Turner said the majority’s analysis confused an action that could not proceed materially with the case management process.

“If a case is being managed, that is not the same under these circumstances as it being stayed or its progress being enjoined,” he wrote. “Judge Kuhl did not stay or enjoin the action; she managed it.”

The case is Bruns v. E-Commerce Exchange, Inc. (2009) 172 Cal.App.4th 488.  

•Declined, by a vote of 5-1, to review the Fourth District  Court of Appeal, Div. One ruling in Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, which rejected various constitutional challenges to Megan’s Law by persons seeking to remove their names from the state’s online listing of convicted sex offenders. Justice Joyce L. Kennard voted to grant review, and George did not participate.

The court also rejected a depublication request by the California Public Defenders Association.


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