May 22, 2014 Top Story

Eavesdropping on Jury Panel Leads to New Trial

Counsel's secretive actions raise ethical concerns

Caitlin Haney

Counsel’s secret observation of potential jury members warrants dismissal of the jury panel and a new trial date. MM Steel, L.P. v. Reliance Steel & Aluminum Co. For Section of Litigation leaders, the ruling from the U.S. District Court for the Southern District of Texas  demonstrates an ineffective tactic that raises ethical concerns.

Sliding into the Jury Assembly Room

A partner directed an associate to enter the jury assembly room with the prospective jurors to observe and gather information about the potential jurors. The associate secretly entered the room and took notes on the potential jurors as they filled out their jury questionnaires and interacted with one another. After 90 minutes in the room, court personnel identified the associate as counsel for the defendant and asked her to leave and then informed the court of the incident.

The associate shared her notes with her partner and lead counsel for the other defendants. After the plaintiff’s counsel was informed of the circumstances, he asked for copies of the notes. Counsel refused to share the notes on the potential jurors with plaintiff’s counsel on the basis of the work-product privilege.

Plaintiff Seeks Remedy

A venire panel was presented, but prior to empaneling, the plaintiff filed a motion to remedy defense misconduct, requesting a new venire panel and an order directing the defendant to produce the notes about the potential jurors. The plaintiff argued that the relief was appropriate because the defendant’s counsel’s conduct gave the defense an unfair advantage in picking jurors and unduly influenced the eventual members of the jury. The plaintiff also argued that the purposeful nature of the defendant’s conduct made it more culpable.

In its motion, the plaintiff’s counsel referred to Tex. Disciplinary R. Prof. Conduct 3.06(a), which forbids a lawyer from trying to influence a member of the venire concerning the merits of a currently pending case outside of the official trial proceedings. The district court, without issuing an opinion, rescheduled the trial and dismissed the venire panel while denying the plaintiff’s request for production of the defense counsel’s notes.

Ethical Implications

The associate’s conduct was at a minimum “deceptive and unethical, but tying it to a specific rule for discipline purposes is difficult,” according to Cyril R. Vidergar, Longmont, CO, chair of the ABA Section of Litigation’s Ethics and Professionalism Committee’s Young Lawyers Subcommittee. However, Vidergar believes the tactic seems to be at odds with Texas Disciplinary Rule of Professional Conduct 3.04, which puts forth the general principle that litigants are to be fair to one another. “Trying to obtain information not available to the other party and that you refuse to disclose to the other party” appears to be an unfair tactic, according to Vidergar.

More information “and details about the particular person who did this and why” would be needed before disciplinary action was sought, observes Ghenete Wright Muir, Sunrise, FL, cochair of the Section of Litigation’s Ethics and Professionalism Committee’s Diversity Subcommittee. Attorneys are disciplined for the public’s protection and to “send a message to the legal community that they should not being doing this,” according to Wright Muir. Thus, while no rule directly forbids this type of behavior, disciplinary action against the associate and her supervisor could nonetheless be sought, opines Wright Muir.

Words of Caution and Advice

Some counsel believe that associate attorneys should be mindful that they could be disciplined for actions they took at the direction of partners or other superiors at their firms. “This is your law license, and you have to work to protect it,” advises Muir. Furthermore, “as a young attorney, you are the one who has to sleep at night and reconcile with yourself that you have not created an injustice,” cautions Vidergar.

Associates can take some solace in knowing that if they do take some action at the direction of a superior, and it was a reasonable resolution of an arguable question of law, then they could be protected from disciplinary actions. This protection is found in Texas Disciplinary Rule of Professional Conduct 5.02, which is modeled after ABA Model Rules of Professional Conduct 5.2.

To take advantage of the limited protection for subordinate attorneys, associates must think critically, “ask questions, and determine whether this is arguably a question,” advises Vidergar. Young attorneys need to “seek out an explanation to the questions they develop through their own independent judgment,” according to Vidergar. In this case, because the situation “falls between rules, it is arguably a question,” meaning the associate should be protected, argues Vidergar.

A basic concept for associates to understand is “if a senior attorney asks an associate attorney to do something he or she is uncomfortable with or thinks is wrong, the associate attorney has to be comfortable either standing up to that person or even losing that job,” states Wright Muir. Furthermore, the more you “push the ethical boundaries, the more tension you buildup between yourself and the practice. This can lead to burnout and dissatisfaction with the profession,” warns Vidergar.

Caitlin Haney is a contributing editor for Litigation News.

Keywords: Texas, venire, attorney misconduct, ethics, federal practice

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