Welcome back to another edition of Opening Argument, a reported column where I dig into complicated novel questions of law and unpack disputes that are dividing appeals courts. Today: A look at whether Alex Jones’s lawyer could be disciplined for inadvertently handing years worth of his client’s texts to opposing counsel.
If there’s any lesson attorneys can learn from the defamation case against Alex Jones, it’s that you can’t blame the paralegal.
That’s what his attorney Andino Reynal tried to do after opposing counsel revealed in a made-for-TV cross examination that Reynal had “messed up” by sharing a digital copy of Jones’s entire cell phone with every text message he’s sent over the past two years.
When informed, plaintiffs’ attorney Mark Bankston said Reynal and his team didn’t take any steps to identify as privileged the data which Bankston says proved Jones lied when he said he didn’t have any text messages about the Sandy Hook Elementary school shooting.
One day after the dramatic courtroom scene, the jury said the InfoWars radio and web show host must pay $4.11 million in compensatory damages to the parents of a Sandy Hook victim for perpetuating lies that the 2012 shooting was a hoax. The jury tacked on another $45.2 million in punitive damages a day later.
Reynal could now face discipline for this grave mistake, even though he filed an emergency motion the next day to claw back the texts, saying they’d been inadvertently sent by a paralegal. Texas has a “snap back” rule that lets attorneys get back documents that are sent accidentally in discovery, but only if they state within 10 days of learning of the error that the material is privileged.
John G. Browning, a trial lawyer and former Texas appellate court judge, said attorneys are responsible under the Texas Disciplinary Rules of Professional Conduct for both their own errors and those of whom they supervise.
In the world of electronic discovery, it’s not uncommon for an attorney who is less proficient with technology to have younger attorneys, non-attorney staff, or even outside vendors assisting them, he said. But it doesn’t relieve them of the responsibility to supervise and make sure that’s done accurately.
Texas amended its disciplinary rules in 2019 to make clear to attorneys that being knowledgeable about the benefits and risks of the technology they use is part of being a competent lawyer.
“That doesn’t mean every lawyer has to run out and learn how to code but it does mean that if you’re going to use technology in the course of your practice, you have to be proficient in it or have someone working with you who is,” Browning said.
The client is typically the one to ask the Texas State Bar for a disciplinary action to be taken, but judges and opposing counsel can also file a grievance.
If it was an inconsequential error and had nothing to do with the central issue in the case, the judge wouldn’t care, said Eric Turkewitz, a personal injury attorney in New York.
“But this has something to do with the case,” he said.
A judge in a separate case against Jones in Connecticut, ordered Reynal and Jones’ other attorney Norman Pattis, to show cause as to whether or not they should be referred to disciplinary authorities for the “purported release of medical records of the plaintiffs” that Bankston told Bloomberg Law were part of that data dump.
In an email, Reynal said it wasn’t two years’ worth of text messages as has been been reported.
“It was eight months of text messages, from mid-july 2019 to early 2020,” he said. “Ediscovery is complicated and the stakes are very high when your team makes an inadvertent mistake.”
He then directed Bloomberg Law to the motion he filed in Texas court.
Reynal alleged in an emergency motion to seal the file Aug. 4 that Bankston had violated various privileges, including the attorney-client privilege and work-product privilege, by opening the file even though Reynal emailed to say there was a “mistake in the file transfer” and to “disregard.”
The judge denied the motion later that day.
Jones could also file a malpractice lawsuit against his attorneys, but University of Connecticut Law Professor Leslie Levin said it would be hard for him to win.
“He would need to show that but for this conduct he would have won the case and he’s not going to be able to show that,” she said.
Regardless of what happens, this is a screw-up Levin said law professors will be talking to their evidence and professional responsibility classes for years to come. It’s that uncommon.
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