Elon Musk’s Lawyer Faces Sanctions After Deposition Meltdown, While Engaging In Unauthorized Practice Of Law
Elon Musk's favorite lawyer, Alex Spiro, isn't having a great week. Sure, sure, he just signed up embattled NYC mayor Eric Adams as a new client, but he seems to have royally fucked up in defending Elon.
One of Elon's many legal fights currently is a defamation lawsuit filed by a California man, Ben Brody. Last year, there was a fight between two different groups of far-right neo-Nazis that got some attention. Some of them were masked, and at one point, one guy's mask got pulled off. Some fucking idiots that Elon Musk follows falsely claimed that one of the unmasked dudes was Brody, and that it was some sort of false flag operation, because Brody is Jewish (and had expressed an interest in working for law enforcement) and wouldn't be a part of a neo-Nazi org.
As he is known to do, Musk went with the standard confirmation bias response of assuming anything any idiot tells him must be true.
Brody is represented by Mark Bankston, who recently (successfully) represented families from Sandy Hook in their successful defamation lawsuit against Alex Jones.
I didn't write about the case at the time because while it does show Musk being an absolute gullible buffoon (yet again), it's not clear to me that what he did actually reached the level of defamation. It seemed at least worth waiting until the case was further along and more details were available.
But, the case took an absolutely bizarre turn in the last week. You see, at the end of March, Musk sat for a deposition and brought along his buddy Spiro, who seemed wholly unfamiliar with how litigation or depositions work, despite being one of the highest paid, most well-known litigators out there.
Musk revealed a bunch of embarrassing shit in the deposition, including about his various burner accounts on Twitter and where he acted like an absolute ass when asked some fairly basic questions about the lawsuit (pretending that Bankston, not Brody, was the plaintiff, for example). He also appears to have admitted a bunch of really damaging stuff for the case.
But, things really go off the rails at the end when Spiro demands that the deposition be marked confidential" out of nowhere. That is... not how any of this works. As you can tell from the transcript that ensued, you need to get a protective order before any of this happens. You don't just get to declare it confidential" after the fact.
MR. BANKSTON: All right. Mr. Musk, I don't have anything more for you today.
MR. SPIRO: Okay. Thank you.
THE REPORTER: Mr. Spiro, I need to have you say on the record whether you want a copy of the transcript.
MR. SPIRO: Yes, and please mark it confidential.
MR. BANKSTON: I'm sorry. What? There's no PO in this case.
MR. SPIRO: We're asking for it to be deemed marked confidential until we address -
MR. BANKSTON: Under what authority? No. There's no PO.
MR. SPIRO: Well, that's what I'm asking for. You want to release it -
MR. BANKSTON: Then you need to move - you need to move fora PO. I don't - no -
MR. SPIRO: Okay. Then we will move for PO.
MR. BANKSTON: Right. Over discovery that's already happened?
MR. SPIRO: Yeah. Okay.
MR. BANKSTON: I'm absolutely positive there's not -
MR. SPIRO: I'm asking - Mark, don't interrupt me, okay? Mark, don't interrupt me.
MR. BANKSTON: All right.
MR. SPIRO: I'm asking that this transcript be marked as confidential. That's what I'm asking for, okay?
MR. BANKSTON: I don't agree.
THE REPORTER: Mr. Spiro
MR. BANKSTON: Yeah, he jumped off the record, but we're not off the record yet.
THE REPORTER: I need to find out if Mr. Musk wanted to read and sign his transcript.
MR. BANKSTON: Well, we're not going to find that out either because he just left. I do need to make a record on what just happened for the Court. Parties must obviously move for a protective order over discovery before it occurs. I am in no way bound to treat anything confidential.
There is no confidential order in place. There is a method in which to do that. Attorneys from Quinn Emanuel should know very well how to do that. In fact, even Alex Jones' attorneys knew how to do that. Apart from that, there's not a single trade secret or anything confidential ever mentioned anywhere throughout this deposition. I'm very concerned that Mr. Spiro, a non-Texas lawyer who is - came to this deposition to practice law in violation of Texas law with no pro hac admission completely shut down many segments of the deposition, issued several instructions not to answer that were wholly inappropriate, completely interrupted and made objections outside of Rule 199.5. And then at the end of the deposition demands that it be treated confidential.
Mr. Spiro is clearly not following any of the procedures that would need to happen here. Given what he's said, we will not discuss what happened here in this deposition with third parties until we talk to the Court about it obviously. But we will make sure for the record - we do not see any method on which to designate things as confidential, so we don't - we. don't recognize that request as anything valid.
If they want to pursue a Rule 76 at a future time, I mean, I guess they're welcome to try to do that. But, again, just to state for the record, we are not - we are not under protective order. We have no obligation to abide by any confidentiality, and we reject wholeheartedly Mr. Spiro's unilateral attempts to place us under some sort of legal obligation. We do not recognize it whatsoever. And with that, we conclude the deposition today.
THE VIDEOGRAPHER: This concludes the deposition at 3:19 p.m.
I've seen some wild depositions over the years, but this one is way out there.
Anyway, Bankston followed up with his comments at the end of the deposition and requested sanctions against Spiro for engaging in unauthorized practice of law. Standard practice for an out-of-state lawyer is to apply in the relevant court for pro hac vice" admission to the court. It literally means for this occasion," and allows an out-of-state lawyer to request to practice (usually with assistance from a local lawyer) in that state for this particular case. It's usually rubber-stamped by judges.
But Bankston is now opposing the request in Spiro's case while simultaneously requesting sanctions because of his activities.
Out-of-state attorney Alex Spiro brazenly engaged in unauthorized practice of law by signing and preparing Musk's pleadings, showing up unannounced to defend Musk's deposition with no authority to practice law in Texas, and drafting and serving subsequent legal demands to Plaintiff. Even worse, Spiro's behavior in deposition was astonishingly unprofessional, as he continually interrupted the deposition with commentary, gave numerous improper instructions not to answer, berated opposing counsel, insulted Plaintiff's claims, mocked counsel's questions, and generally acted in the most obnoxious manner one could contemplate without crossing into parody. In doing so, he irreparably disrupted the deposition, prevented relevant questioning relating to Plaintiff's TCPA response, and demonstrated his disrespect for the sanctity of these proceedings.
Bankston notes that Musk more or less admitted to all of the important and necessary points to make his tweets about Brody defamatory in the deposition, but also notes that Spiro kept making a mess of the hearing:
In sum, Musk admitted to all the material allegations in Brody's Petition. Yet as damaging as it was, Musk's deposition could have gone even worse but for the obstructionist conduct of the attorney defending the deposition. In this case, Musk has been represented by two Texas attorneys- Emiliano Delgado and John Bash. Both of these attorneys appeared on Musk's behalf at the discovery hearing. However, neither of these attorneys were present at Musk's deposition. Instead, and unbeknownst to Plaintiff's counsel, out-of-state attorney Alex Spiro showed up to the deposition with no notice. Spiro is not licensed in Texas, nor is he admitted pro hac vice. As shown below, Spiro continually interrupted the testimony, injected his commentary in front of the witness, berated opposing counsel, gave numerous instructions not to answer relevant questions, and generally attempted to derail an obviously damaging deposition, all while Spiro was engaged in flagrant unauthorized practice of law. Asa result, the Court's rules have been flouted, and Brody was prevented from a full inquiry on the issue of actual malice.
There's a lot in the filing that suggests Spiro could have easily done things to comply with the basics of the law and chose not to do so.
Spiro decided to show up unannounced to Musk's deposition, make an appearance as his attorney, and represent Musk during his testimony. Plaintiff's counsel were not informed Spiro would appear at the deposition, and none of Musk's Texas attorneys even attended the deposition.
As the Delaware Supreme Court observed, one of the principal purposes of the pro hac vice rules is to assure that" either a local lawyer or a lawyer admitted pro hac vice" will be present at a deposition; as an officer of the [] Court, subject to control of the Court to ensure the integrity of the proceeding" Paramount Commc'ns v. Qvc Network, 637 A.2d 34,56 (Del. 1994). Importantly, pro hac vice requirements also ensure the attorney is familiar with the state's rules, procedures, and ethical standards. As such, Musk should have been represented at the deposition by a [Texas] lawyer or a lawyer admitted pro hac vice" Id. at 55. Here, Plaintiff's counsel noted that he was very concerned" that Spiro came to this deposition to practice law in violation of Texas law with no pro hac admission."10 As shown below, Spiro mocked these concerns.
In doing so, Spiro broke his ethical duties. Without admission pro hac vice, out-of- state attorneys ... actively participating in pretrial proceedings such as depositions ... would be engaged in the unauthorized practice of law in this state." In re Roswold, 249 P3d 1199, 1208 (Kan. 2011); see also Forbes v. Hixson, 145 So. 3d 1124, 1136 (Miss. 2014) ([Plhysically appearing at ..a deposition ...or any other proceeding in which the attorney announces that he or she represents a party to the lawsuit ...require[s] a foreign attorney to be admitted pro hac vice"); see also In re Hughes, 833 NE.2d 459, 460 (Ind. 2005) (violation of professional conduct rule for Indiana lawyer to permit Michigan attorney to handle depositions and mediation in Indiana case); In re York, 2010 MP 11,9 2 n.3, 8 N. Mar. 1. 476, 477 (After the Court learned of Murray's participation in the deposition [before his pro hac vice admission], it made a finding of unauthorized practice of law and revoked Murray's recently-granted pro hac vice status."); Smith v. Hastings Fiber Glass Prods, No. 11-0894, 2014 US. Dist. LEXIS 81125,at*11-12 (WD.La. 2014) (Noting that attorney could not have participated in out of court proceedings such as depositions" without admission pro hac vice in this case ... unless he was engaged in the unauthorized practice of law); In re Cortigene, 13-2022 (La. 02/14/14), 144 So. 3d 915, 918-20 (Holding that non-resident attorney engaged in the practice of law in this state by appearing at and participating in a deposition" and that the appropriate sanction for such misconduct would be a three-year suspension" when attorney participated in the deposition of [client] taken in New Orleans by another party.' and advised [client] once or twice' to either answer or not answer a particular question." even though another attorney predominantly did the questioning and the objecting").
Apparently, after the deposition, Spiro sent a letter to Bankston, representing Musk, about his supposed plans to file for the protective order (which, again, you shouldn't do after discovery). But, that represented further unauthorized practice of law:
On March 27, 2024, following his improper appearance at Musk's deposition and his unprofessional conduct therein, Spiro sent a letter to Brody's counsel. (Ex. 3, Spiro letter). This letter informed Brody's counsel that an emergency motion was being prepared, and the letter made legal demands of confidentiality on Brody, his attorneys, and consulting expert. Thus, even after being confronted during the deposition about his lack of authority to practice law in Texas, Spiro continues to engage in unauthorized practice.
Bankston also outlines how Spiro regularly interjected his own thoughts in the deposition, rather than doing the only thing he would actually be permitted to do: raise objections to specific questions, which could then be reviewed by a judge later on.
This exchange is quite something:
Q Mr: Musk, I'm referring to the fact that on June 24th, 2023, as described in the plaintiff Ben Brody's lawsuit, there was a brawl in Oregon between right wing extremists. Were you aware that that was the subject matter of the lawsuit?
MR. SPIRO: I don't know that that's the subject matter of the lawsuit. I think the subject matter of the -
MR. BANKSTON: A subject matter of the lawsuit. And, Mr. Spiro, again, your objections to questions in an oral deposition under Rule 199.5 are limited to objection; leading and objection; form, or objection; nonresponsive. Those objections are waived if not stated as phrased. All other objections need not be made or recorded during the oral deposition to be raised to the court. You must not give any suggestive or argumentative or any explanations during the deposition.
MR. SPIRO: Well, then don't say things that are misleading.
MR. BANKSTON: No. That's not - that's why you should object to the form of the question.
MR. SPIRO: No, no, it's not-
MR. BANKSTON: That's misleading. Mr. Spiro, you know - Mr. Spiro -
MR.SPIRO: Listen, if you want to go back and forth with me and waste your time, you can. Go on to your next question.
MR. BANKSTON: Oh, we're going to get more time if you keep doing this.
MR. SPIRO: No, you're not. No, you're not. Go to the judge -
MR. BANKSTON: You're violating Rule 199, you're not even pro hac admitted.
MR. SPIRO: Okay. Okay. You're just giving speeches that nobody's listening to but you. You're just doing them for yourself.
MR. BANKSTON: Oh, they're for the record, Mr. Spiro, they're for the court to listen to.
MR. SPIRO: Okay. So keep
MR. BANKSTON: And I would appreciate it - I'm going to give you an instruction. I would appreciate it if you would abide by Rule 199.5 of the Texas Rules -
MR. SPIRO: I heard you the first three times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me.
MR. SPIRO: I heard you the first three times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me. I'm asking you on the record to obey Rule 199.5. If you continue to violate Rule 199.5, I will move for sanctions against you. So I please ask you to obey the rules in the remainder of this deposition.
There's much more between the deposition and the filing, but it's striking.
None of this means Spiro will actually get sanctioned. Judges are often hesitant to go that far. And granting pro hac vice requests is so standard, it wouldn't surprise me if a judge overlooks all this and grants it and says that none of this matters anymore.
On top of that, Spiro likely doesn't much care how this goes. If he has to pay up, he pays up. And he'll just view this as good marketing for how much of an asshole lawyer he is, believing (incorrectly) that this shows how hard he fights for his clients, even as, in this case, he's helped make a mess of things for his client.