Sometimes the odor of an obnoxious client sticks to a genteel lawyer. Once in a while, a lawyer’s unprofessional antics can tarnish a seemingly saintly client. In a rare case, they can somehow manage to make each other look terrible.
Case in point — the Travis County, Texas, defamation lawsuit against right-wing conspiracy theorist Alex Jones. He was represented in that case by attorney F. Andino Reynal. Recall that the jury returned a nearly $50 million verdict against Jones for lying about the Sandy Hook Elementary School massacre.
Jones and Reynal are now dealing with the fallout from that loss. We have already described some of the legal problems that Jones is facing. Let’s focus here on what may be keeping Reynal up at night.
Best we can tell, Jones’ lawyers made at least two serious mistakes during the Travis County case. The first is that instead of sending the plaintiffs’ lawyers copies of texts relating just to Sandy Hook, Reynal’s team gave them a copy of Jones’ entire phone. The phone contained not just texts relating to Sandy Hook but also documents and information reportedly relating to Jones’ presence at the January 6 Capitol Riot.
In a lawsuit, lawyers generally exchange all documents relating to the claims or defenses in a case. This court-supervised process is called discovery. If a document is protected against disclosure by some “privilege,” such as attorney-client privilege, or is not relevant to the claims or defenses in the case, the lawyer doesn’t have to produce it during discovery.
During the trial and related proceedings, Jones swore under oath that he didn’t have any texts relating to Sandy Hook. The copy of his phone shows he lied. Unless his lawyer can persuade the already skeptical judge that he had a legitimate legal reason for not producing the Sandy Hook texts during discovery, Jones and his lawyer will have to face the music for their royal screw-up.
Failure to Claw-Back
Reynal’s second mistake was one of neglect. In cases involving electronic documents, such as emails and texts, mistakes do happen. Sometimes a lawyer inadvertently turns over an electronic document that is protected against disclosure. That’s why lawyers generally have a certain amount of time (Texas gives 10 days) to figure out that they made a mistake and demand the return of the document. Lawyers call this a “claw-back.”
When he received a copy of Jones’ phone, Mark Bankston, the lawyer for the plaintiffs, notified Reynal that he had made a mistake (which is what he is supposed to do). Reynal let the 10 days go by without exercising Jones’ claw-back rights. Bankston was thus free to use the documents he received as he saw fit.
And he used them to great effect. During cross-examination, Bankston confronted Jones with the Sandy Hook texts Jones swore didn’t exist, proving that he had lied to the jury. We don’t know how this may have factored into the jury’s award — the plaintiffs had asked for $150 million — but it couldn’t have helped Jones.
It’s easy to “impeach” — cast doubt on — a witness’s testimony. Witnesses forget, make mistakes, misspeak, and typically have a variety of biases that shape their testimony. Lawyers point these deficiencies out on cross-examination all the time. But when it comes to impeachment, proving a witness actually lied on the stand is pure gold. Bankston couldn’t have done that if Reynal had done his job correctly.
What are the consequences? At least two. First, Jones may have what’s called a malpractice case against Reynal. Lawyers have a duty to use reasonable care when representing their clients. If they breach this duty, their client can sue them for malpractice. Jones may have a tough time winning a malpractice case — he would have to show that the result in the defamation case would have been different but for the lawyer’s mistakes — but Reynal may still want to notify his insurance carrier of a potential malpractice claim against him.
Second, Reynal may face an ethics investigation by the Texas Bar. Texas lawyers must follow the Texas Disciplinary Rules of Professional Conduct. The very first rule requires a lawyer to provide competent representation. Reynal should be concerned about any number of rules (such as those governing candor to the court and the rights of third parties, etc.), but he might be losing sleep over Rule 1.01.
Should the Bar choose to investigate, Reynal could face punishment ranging from a private reprimand to disbarment. He could theoretically lose his law license.
What Now for Alex Jones?
Lawsuits, bankruptcy, sanctions, a malpractice case, government investigations, and potential criminal charges. Looks like Jones and his lawyer will be busy for the foreseeable future.
If nothing else, Jones may have learned that he needs to think before he speaks.
Forgive us if we’re skeptical.
What Could Infowars’ Alex Jones Pay in Defamation Damages to Sandy Hook Parents? (FindLaw’s Courtside)Libel, Slander, and Defamation Law: The Basics (FindLaw’s Learn About the Law)Teen Sues InfoWars, Alex Jones After Being Misidentified as Parkland Shooter (FindLaw’s Law and Daily Life)
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