For as big of an industry as Biglaw is, its member firms prefer to keep a low profile. The lawyer shouldn’t *be* the story, right? (Side note: that’s why 1L year can be so disorienting, especially for people without family connections to the industry. Like — I thought a Cravath was a tie, what does that have to do with associate compensation??) Anyway, the Biglaw firm of BakerHostetler suddenly finds itself as the story — beyond the niche audience of Above the Law, natch — and it’s not a great look.
Rolling Stone has an excerpt of Elizabeth Williamson’s new book, Sandy Hook: An American Tragedy and the Battle for Truth. The book details “the work of Sandy Hook parents who fought to defend themselves, and the truth of their children’s fate against the frenzied distortions of online deniers and conspiracy theorists.” And in the tidbits shared in Rolling Stone, the spotlight shines on Biglaw — specifically now former BakerHostetler partner Mark Bailen.
See, despite being described as “eschew[ing] the limelight,” Bailen represented noted conspiracy theorist Alex Jones and Infowars after the host spread wild theories about the families of the victims of the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. Many of the Sandy Hook families filed defamation lawsuits against Jones, because of the abuse and lies heaped upon them.
Jones spread lies about the crime and the Sandy Hook families for years, accusing them of acting in a false flag operation, an Obama administration pretext for seizing Americans’ firearms. People who believed Jones attacked the families online, threatened their lives, accosted them on the street and at memorial events for their loved ones. A gun was fired into the home of one parent. Lenny Pozner and Veronique de la Rosa, parents of Noah Pozner, the youngest Sandy Hook victim, lived in hiding, moving repeatedly after conspiracists posted their addresses.
But the question of who would represent Jones in these circumstances gets a lot of focus:
In response to each suit, Jones had only doubled down.
“I’m sort of shocked he doesn’t have a lawyer trying to tackle him, going, ‘Dude, just stop talking about this.’
“You’re not doing yourself any favors, you know?’” [Kyle Farrar lawyer for the Sandy Hook families in Texas] said.
The three lawyers wondered who would defend Jones in Lenny’s and Neil’s cases. Jones could certainly afford counsel, and had lawyers at his disposal in other cases. But defending him against the Sandy Hook parents presented a different and unsavory challenge.
“I don’t think any of what I would consider some of the prestigious defense firms would want their name associated with him,” Farrar mused. “Who wants to sign on to that?”
But the then-Biglaw partner did sign on to represent Jones. “For reasons even his fellow media lawyers told [Williamson] they struggle to understand.”
Though actually figuring out that Biglaw was involved in the Sandy Hook litigation took some sleuthing:
It would take the Texas lawyers a while to discover traces of BakerHostetler’s work in at least one Sandy Hook case. In a court filing in Neil’s lawsuit dated August 27, 2018, Jones’ father, David Jones, referred to Mark Bailen of BakerHostetler as “one of our lawyers.”
The elder Jones’ declaration included a letter Bailen sent to Google on Infowars’ behalf on August 16, 2018, after Google terminated its content hosting services agreement with Free Speech Systems, LLC, Infowars’ parent company.
Not long after that, [Mark Bankston Sandy Hook family attorney] found a 2018 Infowars email in a trove of Infowars documents released as part of pre-trial discovery, in which Mark Bailen and Texas lawyer Eric Taube “were deciding on what evidence to secure, what transcripts to get for discovery,” in Neil’s lawsuit against Jones, Bankston told the judge in an August 2021 court hearing. Separately, I read another 2018 Infowars email released in court proceedings that described Infowars staffers’ efforts to gather and send documents to Bailen.
As Mark Bankston, a Texas lawyer who represents Sandy Hook families, notes, “I was certainly surprised to find documents showing an elite D.C. society lawyer had been behind the scenes helping coordinate this catastrophe from its earliest stages. I don’t understand the motivation, but it struck me as cowardly not to put your name on this, to hide behind the scenes.”
Besides only working behind the scenes perverts the most likely justification for Bailen’s representation. There’s an old, silly argument that “everyone deserves an attorney” borrowed (and corrupted) from the criminal context (where it’s actually foundational to our justice system) to justify a whole manner of unsavory Biglaw clients. But here, Jones *has* attorneys of record. Bailen/BakerHostetler are just parachuting in to make sure that representation is top notch.
And now that the cat’s out of the bag, the attention has been far from welcome. Williamson describes the pushback she received when she started drilling into Bailen’s involvement in the Sandy Hook cases. In part because Bailen’s wife, Jessica Rosenworcel, is now the chair of the Federal Communications Commission. And in the lead up to her nomination for the job, Williamson asked Rosenworcel about Bailen’s representation of Jones and was told they have “very separate professional lives.” She also asked Senator Richard Blumenthal (D-CT) about it, as he was a supporter of Rosenworcel for the position and he also represented Sandy Hook families in the Senate. And when Bailen finally answered questions about his representation, well, his reasons are far from clear:
Bailen had raised concerns about journalistic fairness and standards, and objected to the “tone” of my questions. This was one: “A firm of BakerHostetler’s caliber can choose its clients. Why did Baker choose to represent Jones?”
“A hallmark of First Amendment law is that it seeks to protect speech that may be unfair, unpopular, and sometimes outrageous,” Bailen wrote. (He insisted that all our exchanges be in writing.)
Neither he nor BakerHostetler had been Infowars’ “counsel of record” in the Sandy Hook lawsuits, he wrote. I knew that: His involvement was strictly behind the scenes. Bailen called my reporting on his work for Infowars “inaccurate,” but when I asked for specifics, he declined to provide any, writing, “My ethical obligations as a lawyer prevent me from discussing details of former client engagements, irrespective of whether any elements of them have become public.”
Bailen left BakerHostetler in February of this year, which is the only comment the firm would make to Williamson about the matter. And, even before that, in 2020, the firm’s representation of Jones was over:
In late 2021, about a year after BakerHostetler stopped working for Jones, judges ruled Jones liable by default in all four Sandy Hook lawsuits, a sweeping victory for the families. In trials beginning this spring, juries will decide how much Infowars must pay the families in damages. Infowars documents provided to the families’ Texas lawyers in preparation for those trials say Bailen “had to withdraw because of his wife’s employment.”
But this is still the worst kind of publicity for the firm — and Bailen.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).