Don’t rush to judgment in Sands email case

Democratic state Senate District 9 candidate Justin Jones, a lawyer, found himself in a quandary last year.

Jones was a member of the legal team defending Las Vegas Sands in a lawsuit filed by former Sands China Ltd. CEO Steven Jacobs. The Sands legal team told District Judge Elizabeth Gonzalez that a hard drive containing about 100,000 emails sought by Jacobs was only available in Macau, where it was protected by local data privacy laws.

In fact, a "ghost image" of that hard drive had been brought to Las Vegas a year before and had been reviewed by attorneys, including Jones.

After a lengthy hearing that spanned several days, Gonzalez concluded the information was relevant to the case and that "the lack of disclosure appears to the court to be an attempt by defendants to stall the discovery, and in particular, the jurisdictional discovery in these proceedings," and "there can be no other conclusions than that the conduct was repetitive and abusive." Sands was required to pay a fine of $25,000, which will be donated to the Legal Aid Center of Southern Nevada.

Jones - who, significantly, was not mentioned in the order levying sanctions on Sands - was in Gonzalez's court in June 2011 when he heard another Sands attorney tell the judge no one could review the disputed emails outside Macau. But Jones knew that to be false, because he'd personally reviewed some of those documents the previous month here in Las Vegas.

According to UNLV Boyd School of Law professor Jeffrey Stempel, Jones was under no obligation to immediately rise and object, although he and all other members of the legal team had a duty to correct the false statement.

"At some point, as a practical matter, a lawyer should correct it," Stempel said. "Even if a lawyer doesn't have an obligation to speak up instantaneously, he has an obligation ultimately to correct the record."

Stempel cites the American Bar Association's Model Rules of Professional Conduct, which says "a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."

In practical terms, that could mean taking the matter up with the lead counsel on the case, the firm's managing partner or an ethics counsel. If those people refuse to correct a false statement, Stempel says a lawyer still must tell the court, even at peril of being thrown off the case or fired.

And that raises an interesting point, given that Jones no longer represents Sands. Although he has steadfastly refused to comment on the matter, citing attorney-client privilege, it's impossible to dismiss at least the possibility that Jones objected to the false statement he heard in court, and either chose to leave the case or was asked to do so. (He told the truth about the emails when called to testify in the hearings that led to sanctions against Sands.) And because Jones has no discipline on file with the State Bar of Nevada since he was licensed in September 2003, it's reasonable to presume he has not suddenly gone rogue.

Jones' opponent in the race, Mari Nakashima St. Martin, has played up the incident in her campaign. (It's a perfect political attack, since Jones is precluded from mounting any defense because of attorney-client privilege.) Ironically, in attacking Jones, St. Martin also must necessarily attack Las Vegas Sands, which was sanctioned by the judge. And Sands has donated $5,000 to St. Martin's campaign, but given nothing to Jones. Awkward?

We'll probably never know exactly what transpired in the case, and Jones cannot tell us. But it may be too much to say this incident should sink Jones' political future.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or SSebelius@reviewjournal.com.