“Sure He Can”

An attorney’s conduct drew a two-year suspension with possible limited reinstatement after a year from the Delaware Supreme Court

The violations arose from a private investigator’s post-trial contact with a juror without court permission and Beauregard’s statements to the Superior Court about the juror contact.

The story

In March 2019, Beauregard accepted a case from the OCC to represent Ahmir Bailey. The State charged Bailey with first degree murder. On October 8, 2019, after a two-week trial, a Superior Court jury found Bailey guilty of first-degree murder. On October 14, 2019, Beauregard filed a motion for a new trial. He based the motion on possible juror bias stemming from a connection between a juror (“the Juror”) and Bailey’s co-defendant Eugene Riley. A secretary and a paralegal had discovered the possible connection by searching Facebook.

On October 18, 2019, Beauregard retained O’Rourke Investigative Associates (“ORIA”), a private investigative agency owned by Michael O’Rourke, to search for online evidence of a connection between the Juror and Riley.

The problem was in an email exchange that involved, among other things, the investigator’s question whether the juror could be interviewed

At 4:52 p.m. Beauregard responded “Sure he can” in an email he sent only to O’Rourke, not Truitt.  According to Beauregard, he mistakenly and carelessly believed that he was re-confirming his instructions for ORIA to proceed with the interviews of the twenty-two non-juror witnesses, not that he was authorizing ORIA to contact the Juror.18 At 4:58 p.m., O’Rourke responded “Thx” to Beauregard’s email.

The investigator had direct contact with the juror; Respondent filed a new trial motion

On March 16, 2020, the Superior Court denied the motion for new trial.  The court concluded that the Juror and Riley having a mutual Facebook friend who was Riley’s cousin and who was also related to the Juror was insufficient for a new trial or an evidentiary hearing.  The court also found a violation of Rule 3.5 by Beauregard based on ORIA’s improper contact with the Juror without the court’s permission.

The Office of Disciplinary Counsel brought charges

The Board was not persuaded by the ODC’s argument that Rule 3.5(c) was a strict liability rule, and therefore concluded that the ODC had to show by clear and convincing evidence that Beauregard knowingly assisted or induced Stack to contact the Juror. The Board found that the ODC had not satisfied this burden because Beauregard, an experienced criminal defense attorney, was well-aware of the prohibition against juror contact without court permission, and negligently sent the “Sure he can” email “using his iPhone at the end of a busy day involving court appearances in different matters in both the morning and afternoon.” The Board accepted Beauregard’s explanation that he meant to send the email as reconfirmation that ORIA could conduct non-juror interviews, not to authorize ORIA to contact a juror.

Failure to supervise

The Board concluded that Beauregard had violated Rule 5.3(a) by negligently failing to make reasonable efforts to ensure that ORIA did not contact jurors and by negligently sending the “Sure he can” email to O’Rourke. The Board acknowledged ORIA’s expertise and initial statement that there would be no juror contact, but emphasized that Beauregard had never previously worked with ORIA and that the nature of the investigation placed the responsibility on Beauregard to reinforce the requirements of Rule 3.5(c) with ORIA.49 As to Rule 5.3(c)(1), the Board found that ODC had not shown by clear and convincing evidence that Beauregard knowingly ordered ORIA to contact the Juror or knowingly or impliedly ratified that contact.

The Board also found that Beauregard violated Rule 5.3(c)(2) by failing to take remedial action after learning on November 5th that Stack had contacted the Juror. Although Beauregard ended the investigation and chose not to act on the Juror’s willingness to speak to him, he did not inform the Superior Court or the prosecutor of the contact until the prosecutor asked him directly at the December 13th hearing.  Nor did he inform O’Rourke of what happened so O’Rourke could ensure that juror contact would not be repeated in ORIA’s work for OCC contract attorneys.

Alleged false statements

The Board found that Beauregard’s representation that O’Rourke acted on his own in contacting the Juror was a negligent misrepresentation in violation of Rule 8.4(c).  Further, the Board decided that Beauregard’s representations that ORIA was still investigating, that he did not direct ORIA on whom to speak to, and that he did not direct ORIA to contact anyone were knowing misrepresentations in violation of Rule 8.4(c).

The court

After our independent review of the record, there is substantial evidence to support the Board’s findings that Beauregard violated DLRPC 3.5(c), 5.3(a), and 5.3(c)(2). As the Board found, and Beauregard does not contest, Beauregard failed to take reasonable steps to ensure that the non-lawyers assisting him acted consistent with his ethical duties; was negligent when he sent the “Sure he can” email; and failed to take any remedial action to mitigate ORIA’s improper juror contact until it was exposed at the December 13th hearing.

Sanction

The Court approves the Board’s findings and adopts the recommended two-year suspension with the opportunity for limited reinstatement after one year to represent OCC clients.

The attorney had just completed a six-month suspension for other misconduct.(Mike Frisch)