Girlfriend on the Jury?

Volokh Conspiracy has posted about this story: part way through a major roll-over trial, defense lawyers discovered that one of the jurors was the girlfriend of one of the plaintiff's lawyers.  Wasn't that convenient?  The juror was removed, the jury was given a curative instruction, and the jury awarded the plaintiff $28 million. 

It's easy to conflate two different questions: assuming the news account to be 100% accurate, did the plaintiff's lawyer act unethically in not disclosing his relationship to the juror, and (2) should the court have granted a mistrial?  (As a side note for our Generation X and Y readers, a "mistrial" is what you know as a "bad court thingy.") 

As for the second question, the judge's discretion is pretty wide, and judges are supposed to get a fair verdict (not a perfect verdict).  It's conceivable to me that the jury came back with a fair verdict, especially if the juror was removed before deliberations began.  I feel that a mistrial could have been granted and perhaps should have been, but I don't find the lack of a mistrial quite as "unbelievable" as VC's David Bernstein apparently does. 

The first question is a lot [more bothersome].  The duty of candor to the court often includes the duty to speak affirmatively and, in problematic cases, the courts don't hesitate to invoke catch-all duties to speak and catch-all rules of professional propriety.  So, if the plaintiff's lawyer is relying upon the defense of "no one asked me directly," then the lawyer may not be out of the woods.  Also, almost always the trial judge asks prospective jurors if they know anyone or anything about the case.  Perhaps that question wasn't asked.  But if it was asked, and if the girlfriend-juror didn't speak, then any lawyer who stood by silently by knowing of that omission may have some explaining to do.

It's also easy to believe that the lawyer is off the hook if the trial court doesn't follow up.  But there is always the possibility that a state bar ethics investigation will ensue.

[Note: Since my original posting, I added "more bothersome" (now in brackets) for the word "tougher" because a comment made me realize that "tougher" was ambiguous.  I meant that it's "tougher" to justify the lawyer's non-disclosure than to justify the denial of the mistrial.]

UPDATE:  David Giacalone of ethicalesq. has steered me to this case, which appears to be the very same lawyer-girlfriend combination in the roll-over case.  Very strange case about very strange behavior.  Walter Olson discusses the case here.

Comments

[David Giacalone]

The judge may well have done the right thing on the mistrial issue, especially if jury deliberations had not begun, and with both sides wanting to continue.

On the lawyer misconduct issue: Despite the Update at VC, with a Reader's citations to Texas precedent suggesting their may be no obligation, I would far prefer to live in a world where a lawyer's obligation to the forum (and justice) requires him or her to let the court know that a close friend is in the jury pool. The experience at my weblog lsat April, however, in the Alander "silent associate" in Connecticut, indicates that candor is not as prized as it should be in our profession when there might be a downside for the lawyer. See http://blogs.law.harvard.edu/ethicalesq/discuss/msgReader$1166?mode=topic and http://blogs.law.harvard.edu/ethicalesq/discuss/msgReader$1333?mode=topic&y=2004&m=4&d=30.

[DBS]

If the question is whether the lawyer's failure to disclose the relationship was a violation of current rules of professional ethics, I hope the answer is yes. If the question is whether the legal community ought to make the necessary changes to ensure that this is clear in the future, I boldly assert that the answer is yes. It may be hard for a lawyer to do what is right without assurance that others will do likewise, and there is always the risk that collegues (or superiors) will object to a showing of integrity that might affect the outcome of a case, but once the rule is clear there is no excuse. Is this really a hard question?

[David Giacalone]

It's not a hard question, but it is unfortunate that so many lawyers would need a brightline rule before doing the right thing. You show your values and integrity when you do the hard thing despite the disapproval of others -- and the consequences for your career.

If we make something as clearcut as this situation into an explicit rule in the Code, we give a lawyer or defense counsel the excuse in other situations that no specific prohibition exists, and that general requirements of "candor" therefore can't be applied in their case. Similar problems exist throughout the Rules and Code.

[John Steele]

DBS:

Thanks for writing. I would certainly vote for a rule that required lawyers to volunteer the fact that a seated juror is a spouse, significant other, etc. I'd also approve of an appellate court promulgating such a rule. And, regardless of what the rules and cases now say, it's pretty easy for me to say what I would have advised the plaintiff's lawyer in this case.

The tougher issue is whether we discipline a lawyer in the absence of an express rule or pre-existing appellate law requiring dislosure. As I said in my post, courts "don't hesitate" to discipline in problematic cases and the lawyer isn't "out of the woods." I will leave it at that until I know more facts, but you may catch my drift.

[Brad Wendel]

I'm on the record as opposing the use of catch-all rules to punish conduct that does not fall within one of the more specific disciplinary rules. Still, John S. is right that courts tend to interpret the duty of candor in MR 3.3 pretty broadly, and this case might fall within existing precedent. For example, there is a well known line of cases in which lawyers defending criminal cases where eyewitness identification is an issue swap the defendant at counsel table for a paralegal who looks vaguely like the defendant, have the government witness ID the paralegal, and then move for a mistrial. See U.S. v. Thoreen (9th Cir.), et al. Courts regard this sort of tactic as fraud on the tribunal and generally punish lawyers severely. In the "switcheroo" cases, the defense lawyer can at least argue that the tactic exposed the government witness's shaky identification, and therefore should be permitted. There's no analogous justification for the plaintiff's lawyer in the PI case to smuggle his girlfriend onto the jury. With those cases in the background, I'd have a hard time crediting the lawyer's argument that he couldn't have ascertained the wrongful nature of failing to disclose his relationship with the juror.

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