When has a trial lawyer represented his client too zealously?
The Texas Supreme Court heard arguments Friday here in Fort Worth in the nationally-watched sanctions case of Brewer v. Lennox Hearth Products. There was a packed courtroom and an overflow crowd at Texas A&M Law School.
The Court’s decision will set boundaries on just how far a lawyer can go to win a trial. And making the hearing even more sensational, the attorney in question, William Brewer III of Dallas and New York City, has often been in the headlines, most recently while representing the National Rifle Association.
Background: Mr. Brewer represented a company that was sued after lighting hit a house, causing it to explode in Lubbock in 2012. Tragically, a young man died. The family filed a wrongful death and products liability lawsuit claiming the pipe was defective and that other parties were negligent.
Brewer hired a company which conducted a poll of Lubbock residents just before trial.
When the plaintiffs found out, they filed an emergency motion for sanctions against Brewer. The case settled out of court.
The court heard days of testimony on the sanctions motion. Brewer said that the poll was merely designed to test his litigation themes and the questions were random and balanced. While he admitted that he had reviewed the questions, he said that an independent polling company selected the people called and that other law firms did polling before trials. Further, no court decisions or disciplinary rules prevented him from doing the survey.
However, the plaintiffs claimed the telephone survey was an unethical “push poll” designed to taint the jury pool and intimidate witnesses for the plaintiffs.
After hearing days of testimony, including from Brewer, the court found that Brewer’s behavior was unprofessional and unethical. It wrote that the poll and the firm’s other activities could have tainted the jury pool and affected the verdict. The court fined Brewer $133,000 for attorneys fees and expenses and even ordered Brewer to attend remedial ethics classes. Brewer appealed.
The court of appeals in Amarillo affirmed the punishment and increased the amount to $177,000 due to additional legal fees. The court foreshadowed its opinion by quoting the Texas Constitution’s guarantee that the right of trial by jury shall remain inviolate. That fundamental pillar of our legal system is embodied in the 7th Amendment of the United States Constitution.
The court upheld the decision and Brewer appealed to the Supreme Court.
Four major trial attorney organizations filed a “friends of the court” brief opposing Brewer’s conduct.
Fort Worth hearing:
The justices grilled both sides on these key questions:
1. Should an appellate court be allowed to review the trial court’s role as fact-finder in sanctions cases?
2. What requirements should be set before a lawyer is sanctioned?
3. Was the telephone survey a balanced survey of potential jurors or a biased attempt to control their opinions?
4. If a trial settles out of court, does the allegedly offending attorney still interfere with the fairness of the trial?
5. Should all focus groups, mock trials, internet research into potential jurors, and polls be outlawed?
Duty to act zealously
Lawyers are held to the highest of professional conduct codes, perhaps the highest of any profession.
The very first tenet in the Texas Rules of Professional Conduct is that lawyers must represent their clients competently and diligently.
There can be gray areas involving legal ethics and almost every possible question has been answered by the Texas Center for Legal Ethics.
The very existence and future of the court system rests on attorneys’ ethical behavior. The lawyer is an officer of the court and must act as the guardian of our legal system.
Furthermore, the attorney is a member of the community at large who must uphold the system of justice and make sure that its image is not tarnished.
The decision by the Supreme Court will provide badly needed guidance to the Texas legal community.