In the Matter of Respondent A (1990)
Citation: 1 Cal. State Bar Ct. Rptr. 255
Court: State Bar Court, Review Department
Filed: November 26, 1990
Background
Respondent (admitted 1979; no prior discipline) lost a civil jury trial and, afterward, sent a letter to the discharged jurors expressing his views about the verdict. A volunteer Review Department previously reversed a referee’s recommended dismissal and concluded the letter violated former rule 7-106(D) on its face, without considering subjective intent; it remanded for further proceedings. On remand, the referee heard more evidence and recommended a private reproval. The examiner sought review again.
Issues on Review
- Whether former rule 7-106(D) (now Rule 5-320(D)) requires proof of the attorney’s subjective intent to harass/embarrass jurors or influence their future jury service.
- Whether the prior volunteer Review Department’s non-final culpability determination bound the full-time Review Department.
- Whether the record (including credibility findings by the referee) established the required intent.
Holdings
- Subjective intent required: Former rule 7-106(D) is violated only if the State Bar proves, by clear and convincing evidence, that the attorney intended to harass/embarrass the jurors or influence their future jury service.
- Not bound by non-final prior decision: The full-time Review Department conducted its own de novo review and was not bound by the earlier volunteer Review Department’s non-final determination.
- Dismissal adopted: Crediting the referee’s detailed findings and witness-credibility determinations, the Review Department concluded the State Bar failed to prove the required subjective intent; it adopted the referee’s original recommendation of dismissal.
Reasoning
- Text & purpose of the rule: The operative language (“intended to harass or embarrass … or to influence future jury service”) makes intent an element; mere criticism or post-verdict commentary, without the proscribed intent, does not establish culpability.
- Credibility & deference: The referee twice evaluated Respondent’s testimony and surrounding circumstances, finding Respondent a diligent practitioner with an unblemished reputation who had never before contacted jurors; those findings weighed heavily against an inference of prohibited intent.
- Procedural posture: The earlier volunteer Review Department’s facial-violation approach (no intent) did not control; the full-time Review Department independently reviewed the record and resolved the central issue (intent) the opposite way.
- Free-speech arguments: First Amendment concerns were briefed, but the case was resolved on narrower grounds (failure of proof on intent), avoiding a constitutional holding.
Outcome
The Review Department dismissed the proceeding, concluding the State Bar did not prove the required subjective intent under former rule 7-106(D). No discipline imposed.
Holding / Disposition Table
| Issue | Rule / Standard | Result |
|---|---|---|
| Element of intent under former rule 7-106(D) | Post-trial juror contact rule requires subjective intent | Intent required (no strict liability) |
| Effect of prior volunteer Review Dept. decision | Non-final; current Review Dept. conducts de novo review | Not binding |
| Weight of credibility findings | Referee observed witnesses; detailed findings credited | Supports dismissal |
| Final disposition | Clear and convincing proof lacking on intent | Dismissed |
Significance
Respondent A clarifies that former rule 7-106(D) (now Rule 5-320(D)) hinges on subjective intent. Attorney letters to discharged jurors are not per se violations; the State Bar must show the attorney intended to harass/embarrass jurors or to influence their future service. The case also illustrates de novo review at the Review Department and meaningful reliance on the hearing referee’s credibility determinations.