Ethics Watch
| Publication year | 2020 |
| Pages | 15 |
ETHICS WATCH
Dealing with Juror Misconduct
By Nathan M. Crystal
Misconduct by jurors poses a number of difficult ethical questions for lawyers: What do we mean by misconduct? What is the legal significance of the misconduct and how does that issue affect the lawyer's ethical obligations? How should a lawyer proceed when the misconduct is unclear? Does it matter whether the misconduct is beneficial or detrimental to the lawyer's client? Does it matter when the lawyer learns of the misconduct? Because the topic is broad, this article focuses on basic principles using the recent case of Ethier v. Fairfield Memorial Hospital, 2020 S.C. LEXIS 30 (S.C. 2020), as a basis for discussion.
Juror misconduct during uoir dire Ethier v. Fairfield Memorial Hospital was a medical malpractice case in which the plaintiff claimed that the defendant doctor, an emergency room physician at the defendant hospital, misdiagnosed an aneurysm as a spider bite. The jury found the defendant doctor negligent, but also apportioned 70% of the fault to plaintiff and only 30% to the defendant doctor. Accordingly, the court entered a defense verdict under the comparative fault doctrine.
During voir dire the court had asked the prospective jurors wheth er any of them had a "close social or a personal relationship" with either the plaintiffs, the defendant doctor, two nurses who had examined the plaintiff, or the CEO of the hospital. One of the jurors responded that she used to work at the hospital with the CEO. In response to a question from the court, the juror responded that she knew the CEO from that employment. However, the juror did not disclose that she had also worked with the defendant doctor and the two nurses; she was seated as a juror.
The juror's lack of disclosure that she had worked with the defendant doctor and the nurses only came to light after the jury had decided the case. From the opinion it is unclear whether the lawyer for the doctor knew - at the time of the voir dire - that the juror had also worked with the doctor and the two nurses. For the purpose of this article, suppose that defense counsel did know of the relationship. For example, one could imagine the defendant doctor after hearing the juror's response about knowing the CEO whispering to his counsel that the juror had also worked with him and the two nurses who would be witnesses in the case. In this hypothetical case, would defense counsel have had an obligation to inform the court that the juror also worked for the defendant doctor and the nurses?
The applicable rule is SCRPC 3.3(b), dealing with candor to the tribunal, which provides as follows:
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
The rule requires a lawyer who knows that a person commits criminal or fraudulent conduct related to the proceeding to take reasonable remedial action. The duty to take reasonable remedial action continues until the "conclusion of the proceeding" (SCRPC 3.3(c)), so if a lawyer does not know of juror misconduct at the time of the voir dire but learns of the misconduct before the case is finally concluded on appeal, the duty to take remedial action still applies.
Even if defense...
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