Brune & Richard ethics pickle: must defense lawyers probe jurors?

April 11, 2012

The eminent white-collar defense boutique Brune & Richard has spent the last few months in the uncomfortable and unaccustomed position of defending itself. The firm is under scrutiny for its decision not to disclose the results of its pretrial research on prospective jurors until a month after the verdict, when it joined other defense counsel in requesting a new trial based on juror misconduct. This is a cautionary tale. The facts of this particular ethical pickle are so specific as to be almost unbelievable, but the issues raised in the Brune & Richard case are going to become increasingly universal as Internet jury research becomes the rule rather than the exception: How much must lawyers tell judges about their findings? And what are the implications for the jury system if lawyers are required to report mere suspicions about a prospective juror’s past?

Here’s the back story, laid out in a brief filed Friday by Brune & Richard’s counsel at Dechert. At the beginning of jury selection in last spring’s trial in Manhattan federal court of five white-collar defendants accused of marketing illegal tax shelters, Brune & Richard, which was representing a former Deutsche Bank broker, came across some intriguing information. A lawyer at the firm Googled the names of prospective jurors who were part of the jury selection pool. When she searched for Catherine Conrad, she found a 2010 order by a New York appeals court suspending an attorney named Catherine Conrad for alcohol abuse. It wasn’t clear whether the suspended lawyer was the same woman as the prospective juror, so after discussing the problem, Brune & Richard lawyers, including lead counsel Susan Brune, resolved to pay close attention to the juror’s answers in voir dire.

Juror Catherine Conrad said she’d gone no further in school than college, where she earned a degree in literature. She also said she was a stay-at-home wife who had never appeared before a licensing authority. Based on those answers, Brune & Richard decided that the juror and the suspended lawyer were different people who both happened to be named Catherine Conrad.

The firm reconsidered that conclusion several weeks later, when the jury began deliberations. Conrad sent a note to U.S. District Judge William Pauley that used the phrases respondeat superior and vic. liab. (for vicarious liability). Concerned about Conrad’s use of legal jargon, Brune & Richard had a paralegal conduct a Westlaw identity search, which turned up contradictory information about Catherine Conrad. In some respects, the search suggested that the juror and the lawyer could be the same person. In others, the Westlaw search conflicted with Conrad’s voir dire answers about where she lived and whether she was a party in civil litigation. Once again, Brune & Richard concluded after discussion that there must be two Catherine Conrads. The juror, after all, had misused the legal terminology, asking about civil procedures in a criminal case. And as three lawyers from the firm told Pauley at an evidentiary hearing in February, it simply wasn’t conceivable to them that anyone would tell flagrant lies to serve on a jury.

In May 2011, the jury returned a verdict acquitting one defendant and convicting the other four. (Brune & Richard’s client, David Parse, was acquitted on some counts but found guilty on others; the other defendants, including two former Jenkens & Gilchrist lawyers, were convicted on all counts.) Catherine Conrad subsequently sent a gushing note of congratulations to the assistant U.S. attorney who led the prosecution, Stanley Okula. About a month later, the U.S. Attorney’s office informed Pauley and defense counsel of the letter.

Conrad’s letter to Okula included her phone number. When Brune & Richard lawyers went back to their file of research on Catherine Conrad, they found the same phone number tied to the suspended lawyer. With an indisputable link between the two Catherine Conrads, the firm then hired outside investigators to find out more about the woman who now appeared to have lied her way onto the jury. The investigation turned up evidence that the juror Catherine Conrad was not only a lawyer suspended for a drinking problem, but that she had been arrested for driving under the influence, shoplifting, and disorderly conduct; that her husband is a convicted felon; and that she had been denied re-entrance to the New York bar. Last July, Brune & Richard and the other defense firms in the case asked Pauley to order a new trial based on Conrad’s “extensive and deliberate pattern of lies” in voir dire. Those lies hid the juror’s “psychological impairment and bias,” the defense firms argued, and deprived their clients of a fair trial.

The motion for a new trial made no mention of Brune & Richard’s previous suspicions about Conrad, nor its rudimentary inquiries into ties between the juror and the suspended lawyer. But, in a phone conference on the motion, Pauley asked whether any of the defense firms or their jury consultants knew about Conrad before filing the motion for a new trial. That’s a significant point: Prosecutors argued that if defense counsel knew before trial of Conrad’s misconduct and didn’t disclose it, they had waived the right to request a new trial.

Susan Brune responded with a letter informing Pauley of the firm’s pretrial Google search and midtrial Westlaw investigation, explaining that neither was conclusive enough to persuade the firm that Conrad had flat-out lied to the court in voir dire.

But the firm’s admission that it had previously uncovered evidence of the suspended lawyer Catherine Conrad and hadn’t disclosed that evidence raised the possibility that Brune & Richard had deliberately permitted jury misconduct so it could ask for a new trial if Parse were convicted. The firm has argued that that’s a preposterous notion, since it didn’t definitely connect the two Catherine Conrads until after the trial, and didn’t request a new trial until Conrad’s letter to Okula proved the link between the juror and the suspended lawyer.

Nevertheless, Pauley held a hearing in February to determine what Brune & Richard knew and when the firm knew it. Three lawyers, including Brune herself, offered detailed accounts of their investigation and discussion of the Conrad conundrum. (Catherine Conrad also testified; you can judge by the transcript, here and here the merits of the defense argument that she is too mentally unstable to have served on a jury.) The judge asked the Brune & Richard lawyers whether they would have disclosed their previous research if the court and the government hadn’t specifically asked about it. At the end of the hearing he called for briefing from both sides on the question of whether Brune & Richard lawyers would have “satisfied their ethical obligations if they failed to disclose” that they’d researched Catherine Conrad long before requesting a new trial.

The government’s brief, filed Friday along with Dechert’s memo on behalf of Brune & Richard, said that at the very least, the defense firm “failed to exercise reasonable diligence to inquire further or to notify the court about what their research on Conrad revealed, so that the court could make the necessary inquiries.” Brune & Richard, meanwhile, submitted a declaration from legal ethics expert Stephen Gillers, who concluded the firm had not violated any of its ethical obligations in the whole Conrad flap.

In a way, the law firm’s responsibility is a sideshow to the main event, which is whether the defendants deserve a new trial because Conrad lied to get on the jury. The government contends that the juror’s lies do not mean the verdict was tainted. Prosecutors point out that the jury’s exoneration of one defendant and partial acquittal of Brune & Richard’s client shows that jurors, including Conrad, were not biased in favor of the prosecution. (In a recent high-profile Chicago case, involving an associate of former governor Rod Blagojevich, a federal judge let the conviction stand despite post-trial evidence that a juror lied during voir dire.) The defense continues to assert, most recently in a brief filed Friday, that Conrad was not fit to serve so the verdict cannot stand.

But for trial lawyers, the case could set an unsettling precedent. Now, lawyers work under the assumption that jurors are telling the truth during voir dire. But the government’s brief seems to suggest a new duty to investigate or inform the court if defense counsel turns up evidence that may contradict voir dire testimony. The Internet makes it very easy to gather information, but not so easy — as Brune & Richard knows all too well — to make sense of that information. With more and more defense firms investigating prospective jurors online, will lawyers be required to run to court with reports of Internet rumors? How much investigation must lawyers conduct of jurors? And how will prospective jurors respond if they know their lives will be probed by defense counsel?

These are tough questions. Let’s hope Pauley thinks them through when he decides this case.

Spokespeople for both the Manhattan U.S. Attorney and Brune & Richard declined to comment beyond their filings.

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