Texas Supreme Court Reverses Sanctions Against Lawyer Alleged to Have Engaged in Push-Poll

The Texas Supreme Court has reversed the imposition of sanctions by a trial judge against a lawyer who was alleged to have engaged in push-polling in a case shortly before it was set for trial by jury.

The movants argued that a law firm employed by defendant product manufacturer “had improperly commissioned a telephone survey to be conducted in the county of suit mere weeks before the scheduled jury trial without ensuring witnesses, represented parties, judges, and court personnel were excluded from the survey database and without voluntarily disclosing the survey to the trial court or the litigants.”  Maj. Op.,  p. 3.  The manufacturer did not commission the poll or know it was being done. Maj. Op., p.  8.   The poll is appended to the court’s opinion.

The law firm admitted to a mistake in judgment concerning one aspect of the polling but denied that its overall conduct violated any disciplinary rule or statute and further denied that sanctions were not appropriate because there was no evidence of bad faith.

The trial judge ruled that the lead lawyer’s conduct, “‘taken in its entirety,’ including actions of his agents and subordinates, was ‘an abusive litigation practice that harms the integrity of the justice system and the jury trial process  and was ‘intentional[,] in bad faith[,] and abusive of the legal system and the judicial process specifically.’”  The trial judge imposed several sanctions against the lawyer, including attorneys’ fees of over $175,000.  Maj. Op., p. 14-15.  The Court of Appeals affirmed.  Maj. Op., p. 16.

The Texas Supreme Court had a different view.  It held

that the sanctions order, issued under the court’s inherent authority, cannot stand because evidence of bad faith is lacking. Inherent authority has been likened to an“imperial” power with intrinsic “potency” that necessitates “restraint,” “discretion,” and “great caution”; accordingly, sanctions issued pursuant to a court’s inherent powers are permissible only to the extent necessary to deter, alleviate, and counteract bad-faith abuse of the judicial process.  Certain attributes of the pretrial survey may have been reasonably disconcerting to the trial court, but the record bears no evidence of bad faith in the attorney’s choice to conduct a pretrial survey or in the manner and means of its execution.

Maj. Op., p. 2-3 (footnotes omitted).

The majority further explained the concept of “bad faith” as a requirement for imposed sanctions under the inherent authority of the court:

Bad faith is not just intentional conduct but intent to engage in conduct for an impermissible reason, willful noncompliance, or willful ignorance of the facts.  “Bad faith” includes “conscious doing of a wrong for a dishonest, discriminatory, or malicious purpose.” Errors in judgment, lack of diligence, unreasonableness, negligence, or even gross negligence—without more—do not equate to bad faith. Improper motive,  not perfection,  is the touchstone. Bad faith can be established with direct or circumstantial evidence, but absent direct evidence, the record must reasonably give rise to an inference of intent or willfulness.

Maj. Op., p. 22-23 (footnotes omitted).

The Court then reviewed the evidence at found no evidence, either direct or circumstantial, of bad faith by the lawyer sanctioned by the trial judge.

One judge filed an opinion concurring in part and dissenting in part.  He did not believe it was necessary to find “bad faith” before a judge could exercise inherent authority to sanction a lawyer.   His view was that “[d]ifferent levels of culpability—such as bad faith, intent, or negligence—warrant different
types of sanctions.”  Boyd Op., p.5.  He disagreed with the notion that “bad faith” was necessary for the trial judge to enter any type of sanction order, and thought that (at a minimum) the sanction of additional ethics continuing education hours was appropriate.

The majority opinion in Brewer v. Lennox Health Products, LLC., No. 18-0426 (Tex. April 24, 2020).



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