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July|August 2004
Crash Course By Jascha Hoffman
Rundown Jury By Noel C. Paul
On Your Marks. Set. Go Home! By Dana Mulhauser
World's Richest Bailiff By Brendan I. Koerner
Cases & Controversies
The Prudent Jurist By William H. Simon

The Prudent Jurist

Can a lawyer hire a former jury member as an adviser after a mistrial?

By William H. Simon

An appeals court for the Armed Forces has found that a defendant's case was hurt by a homosexual relationship between the defendant, charged with forcible sodomy, and his lawyer. The defendant pled guilty. The court ruled that the relationship impeded the lawyer's ability to give effective counsel. Did the court get it right?

A RECENT AMERICAN BAR ASSOCIATION ETHICS STANDARD holds that lawyer-client sex is always improper unless the sexual relation began before the professional one, and in this instance it did not. The issue before the court here was not professional discipline, however. It was whether the client's guilty plea should be reopened. The soldier had to show that the lawyer's concededly improper conduct prejudiced his case.

As the panel reasoned, the lawyer had a conflict of interest that was likely to have biased his advice to the client. The lawyer was a military officer. He would have been professionally ruined if anyone discovered the relationship, which was both homosexual and adulterous on his part. His client's defense to the prosecution was that the incidents from which the charges arose were consensual. If the client had gone to trial and testified, the prosecution might well have sought to cross-examine him on his sexual relationships—and the defendant might have had to disclose his involvement with his lawyer.

The counterview is that consensual sex would not have been relevant in a rape trial. But as we learned from Paula Jones's suit against President Bill Clinton and the ensuing impeachment, when it comes to nonmarital sex, courts are often sympathetic to strained theories of relevance.

A rape defendant who alleges consent should be able to consider going to trial. Defense counsel had a strong conflict of interest in advising about that option. The consequences of the plea bargain were borne entirely by the defendant, but the trial threatened disaster for the lawyer. It is too much to expect the lawyer to give objective advice in this situation.

An elected probate judge in York County, Me., Robert Nadeau, has refused to hear the cases of lawyers who have either run against him or who have supported his opponents. He reportedly informed one lawyer that he was recusing himself because her name had appeared in a newspaper ad in favor of one of his opponents, and that he would reconsider his recusal if she withdrew her support for that candidate. Should Nadeau recuse himself in this way?

WHATEVER HIS INTENTIONS, the judge is imposing a substantial penalty on lawyers who oppose his electoral ambitions. In this case, Nadeau is the only probate judge in York County, so his pattern of recusal forces lawyers and clients to travel to another county. But even in a bigger jurisdiction with more than one judge, this practice might deny lawyers the option of bringing cases before judges whom their clients might prefer.

Judicial ethics rules do not require Nadeau to recuse himself just because a lawyer has participated on either side of his election. No doubt he thought that, if he was biased against supporters of a rival, recusal was appropriate and in the interests of those lawyers. Fair enough, but it's a mystery why he would not also worry about whether he was biased in favor of lawyers who have supported him and would not disqualify himself in their cases as well.

The more basic problem is that, assuming the election of judges is an appropriate way to select them, private campaign contributions undermine confidence in courts. Some years ago the ethics rules required campaign support to be funneled through an independent campaign organization that kept the identity of contributors from the judge. Campaign finance disclosure laws killed this practice. A plan that provides public funding to judges who renounce private contributions may be the best way to solve Judge Nadeau's problem. In any case, a judge who feels he cannot judge fairly in a broad range of the cases likely to come before him should not be running for office.

After a mistrial, could the prosecution or defense hire a former jury member as an adviser for the retrial? Could Tyco hire Ruth Jordan, the juror who allegedly flashed the defense an O.K. sign in the move that led to the mistrial of the company's former executives?

JURORS ARE FREE AFTER A TRIAL to discuss their experience, and, so long as lawyers are not bothersome or deceptive, lawyers are free to talk with them. Still, the prospect of a lawyer's retaining a juror after trial to advise in a related case is troubling.

Former prosecutors or judges are generally prohibited from working privately on matters related to those on which they worked while in office. For example, a federal district court disqualified a lawyer at Shearman & Sterling last month from representing a tobacco company because of his prior tobacco-related work at the Department of Justice. Jurors are also public officers, albeit temporary ones. As with judges and prosecutors, we don't want them to be influenced in performing their public duties by the prospect of later private gain.

William H. Simon teaches professional responsibility at Columbia Law School.

Questions for the Prudent Jurist can be sent to

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