Four prominent trial organizations representing more than 10,000 lawyers in Texas filed a brief Friday with the Texas Supreme Court asking the justices to reverse an opinion it issued just two weeks ago that tossed out sanctions against Dallas lawyer Bill Brewer for allegedly trying to taint the jury pool in one of his cases.
The Texas Association of Defense Counsel, the American Board of Trial Advocates (ABOTA), the Texas Trial Lawyers Association and the Texas Chapter of ABOTA argued that the April 24 state Supreme Court decision wrongfully handcuffs trial judges who try to police lawyer misconduct in cases before them.
“This opinion appears to set a new and disturbing standard of trial practice where zealous representation seems to require trial lawyers to engage in push polling using ‘genuine inaccuracies’ – especially in smaller counties – to taint the venire,” according to the amicus brief filed by Dallas lawyer Brian Lauten and Austin lawyer David Chamberlain.
“Given that the sanctity of a fair and impartial jury system is at stake for future generations of lawyers and their clients in our state, Amici beg this court’s indulgence to reconsider its majority opinion, grant rehearing or affirm the court of appeals,” the brief states.
In its 7-1 majority opinion, the state justices tossed out rulings by two lower Texas courts that Brewer, known for his scorched-earth tactics and who currently represents the National Rifle Association, had acted unethically pretrial by trying to influence the jury pool by using a so-called “push poll.”
Justice Eva Guzman, who wrote the majority opinion on April 24, said there “is no evidence” that the controversial attorney acted in bad faith or tried to improperly tamper with the jury process.
“Brewer did not disobey any court order, knowingly or otherwise,” Justice Guzman wrote. “The trial court did not find that Brewer violated any disciplinary rule, nor is there evidence Brewer knowingly violated any disciplinary rule.”
But that is factually untrue – there is clear evidence Brewer acted in bad faith, the trial groups argue in their amicus brief filed Friday.
“The record was replete with evidence that Brewer knew exactly what he was doing and did it anyway as both the trial and appellate courts detail,” Lauten and Chamberlain wrote in their 23-page brief. Lauten also participated in oral arguments for the state Supreme Court.
“If this court’s opinion is interpreted by Texas lawyers and judges as condoning the misconduct that the trial court found Brewer committed, it will encourage even bolder efforts to stack the deck before trial against lawyers who practice within the boundaries of the ethical canons, which is a threat to a fair and impartial jury system,” the groups argue.
A state trial judge in Lubbock ruled in 2016 that Brewer, who was defending a corporate client in a multimillion-dollar damage dispute, conducted a phone survey targeting thousands of individuals possibly in hopes of tainting the jury pool in his client’s favor. The personal injury settled before trial.
District Judge Ruben Reyes sanctioned Brewer and fined him $177,000 and ordered him to attend 10 additional hours of continuing legal education on ethics. The Seventh District Court of Appeals in Amarillo upheld the sanctions against Brewer.
Brewer then appealed to the Texas Supreme Court, which handed him a complete victory last month.
But Justice Jeffrey Boyd wrote a dissenting opinion that took issue with the majority’s wording that there was “no evidence” in the case against Brewer.
In an 11-page opinion, Justice Boyd pointed out “the trial court specifically found, and the court of appeals agreed, that some of the survey questions, which the attorney personally reviewed and approved, were designed to influence or alter the opinion or attitude of the person being polled.”
“I have repeatedly documented my view that ‘no evidence’ should mean ‘no evidence,’” wrote Justice Boyd, stating that he agreed that the $177,000 monetary sanction should be reversed.
But he wrote that his colleagues erred when they took away the trial judge’s authority to determine that Brewer should be required to attend ethics training.
“Before today, this court has never held that trial courts can only exercise their inherent authority to sanction a party or attorney if they first find that the party or attorney acted in ‘bad faith,’” Justice Boyd wrote. “Globally applying a bad-faith requirement to all inherent-authority sanctions for all sanctionable conduct unnecessarily handcuffs our state’s trial courts and undermines the very reason they possess inherent authority in the first place.”