You probably know that if you are a practicing lawyer, you can get out of jury duty.
The Virginia Code provides an exemption in § 8.01-341. In addition to exempting the president, the governor and any judge of any court, the section says at (5) that “licensed practicing attorneys” get a pass from “serving on civil and criminal cases.”
The reasons for the exemption are not completely clear.
In part it may be rooted in the 6th Amendment guarantee of a right by an “impartial jury.” U.S. Supreme Court cases addressing this right get into the “fair cross section” principle – somehow lawyers may not qualify.
Or maybe lawyers know too much and will second-guess counsel in the case.
Or perhaps there’s a concern that lay jurors might give too much deference to an officer of the court sitting in the box with them.
Every few years, some member of the General Assembly attempts to amend this section to remove the attorney exemption and throw lawyers into the general jury pool. They all have failed; the most recent attempt came in 2004.
But even with the exemption, what happens if you actually want to serve on a jury?
That very question was raised in Arlington recently. Circuit Clerk Paul Ferguson had a practice at juror orientation of asking if anyone in the venire was a lawyer. If the answer was yes, the person was politely shown the door.
From time to time, he said, lawyers would ask to stay and serve. So Ferguson wrote to Attorney General Ken Cuccinelli for his opinion on the issue of whether a lawyer can serve as a juror, despite the exemption.
Cuccinelli’s short answer: Sure, why not?
The AG said that the Code section doesn’t bar a lawyer from jury service if the lawyer is willing to waive the exemption.
Cuccinelli made several other observations about Code § 8.01-341:
•?The exemption covers “licensed practicing attorneys,” not “attorneys in Virginia.” In other words, a licensed practicing attorney working in the District of Columbia, Maryland or any other state can invoke the exemption.
•?“Practicing” means just that – the attorney is engaged in the business of law, rendering legal services or otherwise working on behalf of clients.” In other words, if you just have a law degree and a license from the bar, but you work in a different field, you are not exempt.
Ferguson said the Attorney General’s opinion is good news. Arlington has a large lawyer population and now he will have a larger pool from which to draw. And the AG’s distinction about “practicing” lawyers will be useful. Many people with an active law license live in the D.C. suburbs but work in the District at a government job.
Real world question: So what do you think will happen to any lawyer who wants to waive the jury service exemption?
Given counsel’s ability to use a peremptory strike, how long do you think that lawyer actually will last in the jury box? How fast is a New York minute?