Topic: Professions & Institutions
There is supposedly an ethical conundrum for lawyers that arises out of the undeniable fact that most of the profession’s ethical violations, even many egregious ones, go unpunished. The conundrum is this: if a lawyer is supposed to do everything possible on behalf of his or her client "permitted" by law and the ethics rules, is the lawyer than allowed.indeed required.to make use of effective strategies that involve breaking ethics rules that are never enforced? Are not acts that do not attract reprimand or punishment "permitted," even though they may be specifically condemned in the ethics codes, or generally forbidden because they violate the clear intent and spirit of the rules?
It’s the kind of argument that could only come from a lawyer, and roundly condemned by most ethicists. The ethics rules are supposed to be self-enforced by the lawyer’s determination to be honest and fair (Okay, quit laughing!).Still judges don’t help the situation any when they refuse to acknowledge and condemn outrageously unethical acts, as in the recent case where an attorney suing the Ford Motor company had a paid agent in the jury. She was his girlfriend.and his jury consultant. After the jury delivered a whopping verdict against the car manufacturer and the true nature of the juror’s influence was revealed, Ford asked the judge for a new trial on the basis But Judge Amado Abascal of Texas’ 365th District Court rejected Ford’s request, finding that Ford failed to prove that its right to a fair trial was compromised by the jury misconduct.
Plaintiff’s attorney Mikal Watts is no doubt rubbing his hands together in glee and accepting high-fives from his clients, who now have a 28 million dollar verdict in their favor. Yet anyone should be able to see that the juror, with whom Watts admits a romantic involvement, had no business being on a jury being argued by her boyfriend. She had an obligation as a citizen and a potential juror to reveal the conflict of interest, and Watts had an obligation to tell the court that she was incapable of being part of an unbiased jury.
Jurors in the trial have produced affidavits that allege that Watt’s main squeeze used her skill as a jury consultant to argue for a plaintiff verdict, and that before she was dismissed from the jury mid-trial she had thoroughly slanted the jury’s view of the case.
Watts’ argument is simply, "Tough!" "They picked a bad jury," he has said. It isn’t his obligation, he says, to pick the other side’s jury for them. "Who doesn’t ask a juror if they know opposing counsel?" he points out, presumably with a sneer.
Well, while it isn’t a lawyer’s obligation to pick a jury for his opposition, it is his obligation to protect the integrity of the justice system. A jury dominated by a lawyer’s girl friend who just happens to be a professional jury consultant is not just a bad jury; it’s a corrupted jury, a biased jury, and an infiltrated jury. As with many outrageously unethical tactics, this one is so unusual that the ethics codes don’t specifically mention it, but there is no question about its nature: it stinks. Lawyers aren’t even supposed to talk to jurors, and Watts says it’s not an ethical problem if he’s dating one?
But so far, it’s worked. If the Texas Court of Appeals and the Texas Bar doesn’t take a stand, we can expect more lawyers to attempt to pack juries with their friends, lovers and consultants. And why not?
It’s ethical, isn’t it?