UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

*1 This matter arises out of an Order to Show Cause issued by the court on August 4, 2022, to address whether Attorney Andino Reynal (the respondent) violated certain rules of professional conduct arising out of the improper disclosure of confidential medical and other records. Following hearings on August 17, 2022, and August 25, 2022, where the respondent was present and represented by counsel, and having considered the evidence and briefs, the court finds as follows.

In the three consolidated cases giving rise to the Order to Show Cause, the plaintiffs, various immediate family members of victims and a first responder to the December 14, 2012 Sandy Hook school shooting, brought suit against the defendants, Alex Emric Jones and Free Speech Systems, LLC (FSS).[1]

On February 22, 2019, the court granted the motion for protective order filed by the Jones defendants,[2] which allowed, inter alia, the plaintiffs’ medical and/or mental health records to be designated as confidential.[3] The court order limited the use of such confidential information.[4] On June 16, 2021, the court granted, without objection, the plaintiffs’ motion to modify the protective order to create a Highly Confidential-Attorneys Eyes Only designation.[5],[6] Finally, on June 15, 2022, the court granted by consent a final modification to the order of protection, adding “sensitive information of parties or witnesses, which is ordinarily kept confidential” as a category of information which could be designated as confidential.[7],[8] All three versions of the protective order required that “(a)ll persons having access to Confidential Information” to “maintain it in a safe and secure manner.”

*2 Utilizing a database management firm to ensure that discovery materials were protected and secure, the plaintiffs, beginning in October of 2021, began a rolling production. This rolling production was released every two weeks, and continued through June of 2022. Every document that was released was reviewed by one of the plaintiffs’ attorneys. All discovery materials were provided to the Jones defendants electronically via link, which could be downloaded. The offices of plaintiffs’ counsel as well as their vendor had measures in place to keep the materials secure. Medical records, deposition transcripts, and employment, financial, and professional records were among the records of the plaintiffs that were designated as Highly Confidential-Attorneys Eyes Only. The plaintiffs produced over 390,000 pages of discovery materials, approximately 4000 of which were the plaintiffs’ medical records.

The concerns of the court with protecting the plaintiffs’ medical and confidential information were made painfully clear early in the discovery process, when Attorney Norman Pattis, defendants’ counsel, filed a motion to depose Hillary Clinton, improperly using information designated as Highly Confidential-Attorneys Eyes Only.[9] Most unusually, Pattis filed the motion containing the Highly Confidential-Attorneys Eyes Only information as the deposition was taking place. In fact, the motion to depose Clinton was filed during the very first of the plaintiffs’ depositions. In ruling on the plaintiffs’ motion for sanctions filed in response, the court, on August 5, 2021, entered in part the following order: “Given the cavalier actions and willful misconduct of Infowars in filing protected deposition information during the actual deposition, this court has grave concerns that their actions, in the future, will have a chilling effect on the testimony of witnesses who would be rightfully concerned that their confidential information, including their psychiatric and medical histories, would be made available to the public. The court will address sanctions at a future hearing.” Beginning in June of 2021, both the court and the plaintiffs clearly expressed their concerns with respect to protecting the plaintiffs’ mental health and other medical and confidential information.

In late February of 2022, Pattis contacted the respondent, a Texas attorney, regarding the respondent's potential representation of Jones and related defendants in five cases pending in Texas.[10] The expectation was that the respondent would also be working on the three consolidated Connecticut cases, and that the two would collaborate on the Texas and Connecticut cases. In March of 2022, approximately six weeks prior to the then trial date in Texas, the respondent filed an appearance in the Texas Sandy Hook defamation lawsuit brought by Scarlett Lewis and Neil Heslin (Texas case). The respondent was the tenth lawyer for the Jones defendants in the Texas case, initially appearing as co-counsel with Jacquelyn Blott. Blott gave the respondent the files for all five of the Jones defendants’ pending Texas cases.

The respondent continued to communicate with Pattis, and the respondent requested the text messages produced by the Jones defendants in Connecticut as well as the Jones defendants’ Connecticut deposition transcripts. Neither the respondent nor his office ever requested from Pattis, or from anyone else, the Connecticut plaintiffs’ medical, tax, employment or financial records. The respondent's focus was on preparing for the upcoming Texas trial, which did not require him to review the Connecticut plaintiffs’ records.

*3 On April 13, 2022 and April 14, 2022, emails were exchanged between Pattis, Texas attorney Kyung Lee and Wolman, regarding “Randazza emails.”[11] On April 17, 2022, on the eve of trial in the Texas case, Lee filed a petition for bankruptcy on behalf of the Infowars defendants in the U.S. Bankruptcy Court, Southern District of Texas (the InfoW bankruptcy case.)[12] Plaintiffs’ counsel in the Texas and Connecticut Sandy Hook cases filed motions to dismiss the InfoW bankruptcy case, as did the U.S. Trustee. On April 18, 2022, adversary proceedings were filed in the U.S. Bankruptcy Court, District of Connecticut (Bridgeport)(the Connecticut adversary proceedings), and the three consolidated Connecticut cases were removed to bankruptcy court.[13]

On May 2, 2022, Lee emailed Wolman and Randazza, reporting on the status of the InfoW bankruptcy case, reporting that the respondent and Jordan had provided him with the discovery in the Texas case, and stating that when he had asked Pattis and Atkinson about the Connecticut discovery, Atkinson recommended that Lee contact Wolman and Randazza directly, as the transfer from Wolman and Randazza to Pattis and Atkinson was corrupted[14]. Lee asked Wolman to provide him with all the Connecticut discovery “by and for each side,” in light of the changing number of lawyers representing the Jones defendants and the status of discovery in both Texas and Connecticut. Lee gave no thought as to what the Connecticut discovery would include, and although he asked for everything, he had no need for the Connecticut plaintiffs’ mental health or other medical records.

Half an hour later, Wolman responded to Lee by email, stating that on March 28, 2022, he had given Atkinson a new SSD drive with several hundred gigabytes, which Atkinson confirmed worked[15]. Wolman suggested that Atkinson's office Fed Ex the hard drive to Lee, and noted that Lee would need to get the Connecticut plaintiffs’ recent compliance from “Norm's team.” Six minutes later, Wolman emailed Lee again, copying the same five individuals including Pattis and Atkinson, warning that in light of this court's protective order, Lee might not be authorized to access the Connecticut plaintiffs’ confidential documents[16].

*4 Lee responded to Wolman five minutes later, copying the same five individuals including Pattis and Atkinson, thanking Wolman and confirming that he would “look into the confidentiality situation in the Connecticut litigation.” A few minutes later, Lee emailed Rodriguez, asking him to locate the confidentiality order, and asking Pattis and Atkinson if they knew what Wolman was referring to[17]. Shortly thereafter, Lee responded to Wolman's email, confirming that he would follow through with Atkinson and Pattis. Later that morning, Rodriguez emailed Lee, (copying Atkinson, Pattis, Schwartz, Shannon, Battaglia, and Jordan), attaching the Connecticut protective orders, and highlighting the Highly Confidential-Attorneys Eyes Only language.

Neither Pattis nor anyone from his firm advised of the existence of the protective order, asked Lee to sign a confidentiality order, or responded to Wolman's warning or Lee's inquiry about the protective order. Similarly, neither Pattis nor anyone from his firm informed Lee that they were sending him the Connecticut plaintiffs’ mental health records, medical records, or other such sensitive information. Instead, shortly after this May 2, 2022 email exchange, Lee received at his Houston office a white external hard drive in a bubble wrap envelope, along with an undated cover letter from Atkinson to Lee, enclosing the hard drive–the same hard drive that Pattis and Atkinson had obtained from Randazza and Wolman. Neither the envelope nor the hard drive was designated or marked in any way as confidential or protected by court order, despite the fact that the hard drive contained the Connecticut plaintiffs’ Highly Confidential-Attorneys Eyes Only medical records and discovery. The cover letter was similarly silent. Lee was unsuccessful in his efforts to download the hard drive.

On May 6, 2022, plaintiffs’ counsel in both the Texas and Connecticut cases notified Lee of their intention to withdraw their claims against the three InfoW debtors. On May 31, 2022, Pattis moved to withdraw his and Atkinson's appearances in the Connecticut cases, representing that they had been discharged.[18],[19] On June 1, 2022, the Connecticut cases were remanded back to state court[20]. On June 6, 2022, the Bankruptcy Court for the Southern District of Texas dismissed the InfoW bankruptcy by agreement of the parties including the U.S. Trustee.

*5 Sometime between June 1, 2022 and June 15, 2022, at the end of a meeting in FSS’ conference room in Austin, Lee handed the hard drive, unmarked, unaltered, and with no envelope, to the respondent.[21] It did not occur to Lee to inform the respondent that the hard drive contained the Connecticut plaintiffs’ Highly Confidential-Attorneys Eyes Only information, and the respondent was not asked to sign any confidentiality agreement. The respondent, concerned with what the Jones defendants had produced in Texas compared to what they had produced in Connecticut, subsequently transferred it to his own internal hard drive system.[22] Despite the fact that the hard drive still contained the Connecticut plaintiffs’ Highly Confidential-Attorneys Eyes Only documents, absolutely no care was taken to safeguard the information or to document the details of the transfer of the hard drive. Lee testified that someone from either the respondent or Pattis’ law firm asked him to transfer the hard drive to the respondent, and the respondent testified that he either asked for the hard drive or Lee volunteered it. On June 15, 2022, Atkinson emailed Lee, asking Lee to “make the disc available” to the respondent. Lee responded by saying that he had already given it to the respondent. A day or two later, at the request of Pattis’ office, the respondent had the hard drive shipped back to Pattis.[23] Thus, the Connecticut plaintiffs’ sensitive information which should have been safeguarded and which was also protected by the court order was carelessly passed around from one unauthorized person to another, without regard for the protective order, and with no effort to safeguard the Connecticut plaintiffs’ sensitive, confidential documents. The confidential, court protected medical and other records of the Connecticut plaintiffs were improperly and unsafely transmitted at the direction of Pattis to Lee, and then improperly and unsafely transferred by Lee to the respondent, with Pattis’ approval.

On July 6, 2022, Pattis filed an application for the respondent to appear pro hac vice in the Connecticut cases.[24] The application was granted on July 20, 2022, with certain restrictions and the requirement that the respondent file an appearance by July 30, 2022.[25] On July 26, 2022, the court granted Pattis’ oral motion to “withdraw” the respondent's pro hac admission, before the respondent filed his appearance.

In the meantime, on July 22, 2022, the respondent's assistant, at his request, emailed Mark Bankston, lead counsel in the Texas case, with a link to a “gofile.me” archive containing supplemental production. However, the link that was sent mistakenly provided access to other materials, including Jones’ previously undisclosed text messages, as well as the Connecticut plaintiffs’ Highly Confidential-Attorneys Eyes Only medical records and discovery. The directory consisted of an unusually large number of highly disorganized folders and files. Bankston, having concluded that the materials contained the Connecticut plaintiffs’ confidential documents[26] as well as Pattis’ work product, stopped his review and emailed the respondent, alerting the respondent that the documents appeared to include records of the Connecticut plaintiffs and confidential and work product documents.[27]

The following morning, the respondent responded to Bankston by email, telling him to disregard the link, indicating that a mistake had been made. The respondent instructed his assistant to deactivate the link, but did not address with Bankston the documents that Bankston's office had already downloaded, and did not inform Mattei, Pattis, or anyone outside his own office of the inadvertent disclosure. Furthermore, the respondent made no effort to determine which confidential records of the Connecticut plaintiffs had been sent, although he could have inquired of Bankston or asked his assistant what had been sent. The respondent did not instruct Bankston to return or destroy the records, nor were any emergency motions filed in the Texas or Connecticut courts.

*6 On July 24, 2022, Bankston called Attorney Christopher Mattei, counsel for the Connecticut plaintiffs, alerting him of the respondent's potential disclosure of the Connecticut plaintiffs’ confidential documents. Bankston informed Mattei that under Tex.R.Civ.P.193.3, the inadvertent production rule, Bankston was prohibited from examining the records until the ten day “clawback” period in the rule had expired. Bankston reassured Mattei that he had sequestered the records and would delete them once he came across them.[28] On July 28, 2022, Mattei emailed the respondent, stating that the respondent remained bound by the court's protective order, despite the respondent's not having filed an appearance; Pattis was copied on this email. The respondent does not recall whether he read Mattel's email at the time it was sent.

On July 29, 2022, FSS filed for bankruptcy in the U.S. Bankruptcy Court, Southern District of Texas, on the eve of the Connecticut trial which was scheduled to commence jury selection on August 2, 2022. On August 2, 2022, Jones and FSS removed the remnants of the Connecticut cases to the U.S. Bankruptcy Court, District of Connecticut.[29]

The ten-day clawback period ended on August 1, and on August 2, the privilege having been waived, Bankston and his staff reviewed the materials, confirmed that the Connecticut plaintiffs’ confidential documents had been transmitted to them, and deleted them.[30],[31] On August 3, 2022, during his cross examination of Jones in the Texas case, and to the respondent's surprise, Bankston used several text messages from Jones’ phone contained in the documents inadvertently produced by the respondent. The respondent subsequently reviewed the Connecticut protective order for the first time.[32] That same day, Mattei emailed the respondent regarding the respondent's disclosure to Bankston and his staff, requesting that the respondent provide him with an itemized list of the documents, the date he received them, the identity of anyone who had access to them, and confirmation of their destruction.[33] An hour after that email, Pattis texted Mattei, stating “Chris. Give me a call. I learned moments ago that my office may have violated protective order. Norm.”

After trial ended for the day in Texas, Bankston telephoned Mattei, confirming that he had deleted the Connecticut plaintiffs’ confidential documents. That evening, the respondent emailed Mattei, copying Pattis, indicating that he was “deeply troubled” by the “inadvertent disclosure.” Five minutes later, Mattei responded, copying Pattis on the email, and reiterating the steps he wanted taken. Pattis then texted Mattei, stating “Hey. So Texas counsel mistakenly turned over stuff to Texas. Do you recall Zimmerman's ever having downloaded Alex's text messages?”

*7 On August 4, the respondent filed an emergency motion for protective order in Texas regarding the inadvertent production.[34] That morning, Mattei emailed Pattis, pointing out that the respondent was never counsel of record in the Connecticut cases and as such was barred from accessing the Connecticut plaintiffs’ confidential information, and requesting further details from Pattis.[35] Pattis emailed Mattei back an hour later, conceding that the respondent was not counsel of record in this case, but positing that the respondent was “working on the defense of this case and related cases” and therefore authorized to access the records. Pattis explained that they gave the respondent and Lee a copy of their file, that Lee turned his over to the respondent, and that Pattis had asked the respondent to return the file to Pattis. Pattis stated “I directed an associate to send our files to the two attorneys who requested them to defend Alex. I did not direct the associate to withhold the (Connecticut plaintiffs) information. If that is an error, responsibility for it falls on my shoulders.”[36] A few minutes later, Pattis forwarded to Mattei an email from the respondent to Pattis, expressing the respondent's embarrassment, and reporting that Bankston represented to the Texas court that he had destroyed the Lafferty plaintiffs’ records. Mattei then informed the respondent by email that according to Pattis, the materials that the respondent had been given by Lee were the confidential materials that Pattis had given to Lee, and he requested a sworn affidavit from the respondent. Mattei also emailed Pattis, requesting sworn affidavits from the respondent and Lee. The respondent emailed Mattei, stating that he was returning all the files to Pattis[37], that he had not shared the materials with anyone outside his firm, and that as he was awaiting the verdict in the Texas case, he could not prepare the requested affidavit.

On August 8, Mattei emailed the respondent, and then both Pattis and Pattis’ attorney, reiterating his request for a detailed affidavit. The respondent responded by email the following day, indicating that he was now represented by counsel, and Mattei immediately emailed the respondent's counsel, repeating his request for an affidavit.

As indicated above, the show cause hearings were conducted on August 17, 2022, and August 25, 2022.

Pre-trial discovery, including written discovery aimed at obtaining a plaintiff's medical, financial, and other such records, is the standard practice in civil cases by which a defendant can uncover facts and evidence. Discovery proceeds under the authority of the rules of the court, and counsel remain officers of the court during the discovery process, accountable to the court at all times. The litigants, their counsel, and the court expect that protected information uncovered during discovery, including personal identifying information such as social security numbers, and personal medical records such as mental health records, will be safeguarded and not disseminated. Litigants routinely turn over their most private and sensitive information to opposing counsel who are total strangers, and reasonably expect that opposing counsel will safeguard the information without even the need for a protective order. Indeed, our civil system of justice is premised on the trustworthiness of lawyers-officers of the court–and we all rely on our lawyers to keep our information secure and safe.

*8 Just as counsel remain officers of the court, the court has responsibilities as well. Here, the court's obligations are twofold. As always, the court is tasked with the responsibility of overseeing attorney conduct. Additionally, the court is obligated to supervise the discovery process so as to ensure the integrity of our adversarial system of justice.[38] While Connecticut law recognizes the fundamental importance of full and fair discovery in civil cases, such discovery must be conducted in good faith. And, importantly, even opponents have rights in our adversarial system that a lawyer is obligated to recognize and respect. That is, while our adversarial system is based on the marshaling of evidence in a competitive manner, improper tactics are prohibited. As stated in the Preamble to the Rules of Professional Conduct, “(a) lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice ... Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings”. The Rules of Professional Conduct set limits on acceptable conduct so as to ensure the integrity of our adversarial system of justice.

The respondent was obligated to safeguard the plaintiffs’ sensitive information by taking the appropriate steps to identify and either retrieve or assure destruction of the inadvertently produced records once he was informed by Bankston of the inadvertent disclosure. The court's focus here is on the respondent's actions-or rather, inactions-once the inadvertent disclosure was brought to his attention.

Rule 1.1 of the Rules of Professional Conduct states that “(a) lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The Official Commentary states in part that with respect to “Thoroughness and Preparation,” “(c)ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.” The Official Commentary explains that with regard to “Legal Knowledge and Skill,” “(i)n determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner”. On “Maintaining Competence,” the Official Commentary provides that “(t)o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

*9 In order to competently represent a client involved in civil litigation, an attorney must be able to responsibly engage in the discovery process, which routinely requires an attorney to safely maintain and handle confidential materials such as medical records, personal identifying information such as social security numbers, and account numbers for financial institutions. This obligation to safeguard such sensitive information extends not only to a client's discovery materials, but to discovery materials produced by other parties. Competent representation requires, in addition to legal knowledge, other skills reasonably necessary for the representation, including an understanding of the pitfalls associated with relevant technology. It is not uncommon, when engaging in electronic discovery, for attorneys to inadvertently disclose confidential or protected information, and for that reason, attorneys must be prepared to act quickly and appropriately when the unfortunate inadvertent disclosure occurs. Here, the respondent's actions in emailing Bankston back and merely telling him to disregard the confidential documents fell far short of what our rules require of a competent attorney.

The respondent violated Rule 1.1 by not giving the required attention to the plaintiffs’ confidential records following the inadvertent disclosure. While there were many different ways he could have competently handled the inadvertent disclosure, including identifying what had been inadvertently sent by asking his own legal assistant or Bankston; asking Bankston what had already been downloaded; directing Bankston to return and/or destroy the records and then following through for proof of their destruction; reporting the inadvertent disclosure to Pattis; reporting the inadvertent disclosure to Mattei; filing an emergency motion with the Texas court; and/or filing an emergency motion with this court. Instead, he took none of these steps.

As this court pointed out in the companion disciplinary matter, at a basic level, attorneys must competently and appropriately handle the discovery of sensitive materials in civil cases. This means that attorneys must also be able to competently handle mishaps that occur during discovery, including the inadvertent disclosure of sensitive or confidential information. Otherwise, our civil system, in which discovery of sensitive information is customary and routine, would simply collapse. Litigants would understandably be unwilling to turn over the sensitive, confidential or protected information that would be needed to fully and fairly litigate a civil case without the assurance that the attorneys, as officers of the court, would safeguard their information, and, when inadvertently disclosed, take the appropriate, necessary steps.[39]

The court finds by clear and convincing evidence that the respondent, in the course of his representation of the Jones’ defendants, failed to act competently in the handling of the Connecticut plaintiffs’ confidential records in violation of Rule 1.1, resulting in harm to the plaintiffs, whose confidential records were distributed to Bankston without their consent.

Rule 1.15(b) provides in relevant part that “(a) lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property ... Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after termination of the representation”. The Official Commentary provides that “(a) lawyer should hold property of others with the care required of a professional fiduciary.” While typically this rule is applied to monetary funds and co-mingling of funds, the rule expressly refers to “other property” - property other than money – and extends to property of third persons which would include the plaintiffs. The respondent failed to safeguard the plaintiffs’ property by failing to take the necessary steps to identify the records, retrieve the records, or confirm their destruction once he was notified of the inadvertent disclosure via Bankston's email of July 22, 2022. Among the steps that the respondent could have taken included identifying what had been inadvertently sent by asking his own legal assistant or Bankston; asking Bankston what had already been downloaded; directing Bankston to return and/or destroy the records and then following through for proof of their destruction; reporting the inadvertent disclosure to Pattis; reporting the inadvertent disclosure to Mattei; filing an emergency motion with the Texas court; and/or filing an emergency motion with this court.

*10 The court finds by clear and convincing evidence that the respondent, in contravention of Rule 1.15(b), violated his obligation to safeguard the plaintiffs’ property.

“An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited.” In re Peck, 88 Conn. 447, 450, 91 A.2d 274 (1914). An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system.” (Internal quotation marks omitted.) Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 232, 890 A.2d 509, cert. denied, 549 U.S. 823, 127 S.Ct. 157, 166 L.Ed.2d 39 (2006).

“If a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger, 230 Conn. 668, 674-75 (1994).

Connecticut courts have utilized the American Bar Association's Standards for Imposing Lawyer Sanctions as a guide for assessing appropriate discipline, and the Connecticut Supreme Court has approved this approach. Burton v. Mottolese, supra, 267 Conn. 55. The standards provide that the court, after a finding of misconduct, should consider “(1) the nature of the duty violated; (2) the attorney's mental state; (3) the potential or actual injury stemming from the attorney's misconduct; and (4) the existence of aggravating or mitigating factors.” A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 3.0; Listed as aggravating factors are “(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution and (k) illegal conduct, including the involving the use of controlled substances.” A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 9.22.

Listed as mitigating factors are “(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses.” A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 9.32.

*11 Having found misconduct on the part of the respondent, the court now assesses the appropriate discipline. The duties implicated, to the plaintiffs and the legal system, are important ones. The respondent had an obligation to safeguard the plaintiffs’ sensitive medical and financial information after it was inadvertently disclosed. The court agrees with Disciplinary Counsel that the respondent's breach of this duty should be observed in the context of the litigation; here, the plaintiffs in both the Texas and Connecticut cases were seeking redress against the defendants for personal attacks in hotly contested cases.[40] The respondent's breach of that duty subverts proper legal procedure, has a chilling effect on the exchange of discovery and is antithetical to the proper administration of justice. With respect to the respondent's mental state, the court has determined that the respondent acted knowingly and intentionally in disregard of his obligation to protect the plaintiffs’ sensitive information following the mistaken disclosure. As discussed above, no steps were taken with respect to the documents that had been downloaded, and the respondent took no steps to retrieve the documents or confirm that they had been destroyed. With respect to actual or potential injury, in addition to the actual harm the plaintiffs suffered by the unauthorized dissemination of the medical and other records, the potential harm is stunning, as suggested by Disciplinary Counsel. As it was, the unauthorized disclosure to Bankston was revealed on the record in a public trial in Texas that was livestreamed, and easily could have been made part of the record in the Texas case. In short, there is both actual and potential injury here.

Turning to mitigating factors, the respondent has no prior public disciplinary record, and there is an absence of a dishonest or selfish motive. The court attributes some minimal credit for the respondent's late filing of the emergency motion for protective order in the Texas case, although that effort fell short. The court also assigns some minimal credit for remorse; the court does so because the respondent's remorse is tempered by his belief that Bankston was wrong for utilizing the other documents after the ten day clawback period. In fact, the only blame lies with the respondent. The court does also acknowledge the respondent's responsiveness to both Mattei and Pattis, coupled with his expressions of embarrassment and indication that he was “deeply troubled” by the inadvertent disclosure. The court also credits as a mitigating factor good reputation or character, based on the respondent's testimony that he had retained former Texas Disciplinary Counsel to assist him in assessing his discovery obligations in the Texas case, where he came in as the tenth attorney in that case. This court wholeheartedly agrees with the respondent's statement that “both the bar and the bench should actively support lawyers reaching out to ethics lawyers to help them zealously advocate for their clients while staying within ethical boundaries.” Finally, the court considered as a mitigating factor the respondent's full and free disclosure and cooperative attitude toward these proceedings. The respondent appeared in person during the evidentiary hearing, having travelled from Texas voluntarily, without having to be compelled to do so.

There are two aggravating factors: the vulnerability of the plaintiffs, whose personal, sensitive information was disclosed to Bankston without their consent and not properly retrieved, in a case where the claim was that they were victimized by the Jones defendants and suffered severe emotional distress and harm as a result; and the respondent's substantial experience in the practice of law, having been a practicing attorney in Texas since 2007.

Having considered the aforementioned factors, the court is not imposing any sanctions, despite its finding of misconduct on the part of the respondent. This disciplinary matter could easily have had a much different result. The respondent is reaping the benefit here of an impressive number of important mitigating factors that militate in his favor. The court orders, however, that should the respondent make any future pro hac vice applications in the State of Connecticut, he must disclose this proceeding and attach a copy of this decision.