In what may be the first disbarment for a lawyer’s conduct as a jury member, Francis T. Fahy has been disbarred for misconduct in a story that we previously discussed.
As we discussed earlier, his is an amazing case that reads like a scene out of Twelve Angry Men when Juror Number 7 (Jack Warden) announces that he is willing to change his vote just to be in time for a New York Yankees game.
The bar judge found that Francis T. Fahy voted to find a defendant not liable for negligence because the jury had deadlocked and was keeping him from his practice. He is also accused of then lying to the court about his vote.
The case involved a 2004 medical negligence case involving an ophthalmologist’s performance of laser eye surgery. Fay was reportedly upset that the judge would not declare a mistrial and told other jurors that he would change his vote if the court stretched deliberations into a second week.
This is not the first time that Fahy has run afoul of the bar. He was placed on a two-year active suspension in 2007 for willfully misappropriating trust funds.
Things got even more bizarre when the plaintiff’s counsel Dan M. Himmelheber submitted a declaration allegedly from Fahy and bearing his signature that said that he voted for a defense verdict solely to end deliberations and return to his practice. He insists that Fahy helped draft the statement, but Fahy has not denied it and said that his signature was forged.
The California Supreme Court yesterday ordered disbarment with a vote of 6-0.
Retired State Bar Court Presiding Judge Ronald Stovitz reviewed the case and 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.”
I am a bit troubled the the reference to the lawsuit, which should not be used as basis for discipline by the court. He has a right to file such lawsuits and Stovitz was wrong to cite the filing as evidence of his misconduct or bad behavior.
This is not Fahy’s first encounter with the bar. He was placed on a two-year active suspension in 2007 for willfully misappropriating trust funds.
Fay has filed a federal lawsuit contesting the disciplinary action.