Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent New York U.S. District Court Judge’s opinion which found that the former lawyers for a mortgage company (AmTrust) had an ethical obligation and legal duty to preserve client e-mails relating to their prior representation and the failure to preserve “with a culpable mind” could result in an adverse inference instruction that evidence was destroyed in the ongoing litigation. The case is: FDIC v. Malik, 2012 U.S. Dist. LEXIS 41178 (E.D.N.Y. Mar. 26, 2012).
The N.Y. District Judge found that the former lawyers had an ethical obligation and a legal duty to preserve e-mails relating to their prior representation and the failure to do this “with a culpable state of mind” could result in an adverse spoliation instruction since the law firm had control over the documents and the documents were relevant to the other party’s claim or defense. With regard to the “duty to preserve” the opinion stated that “(a) regulation requiring retention of certain documents can establish the preservation obligation necessary for an adverse inference instruction where the party seeking the instruction is ‘a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.'”
The opinion stated in a footnote that “(a) regulation requiring retention of certain documents can establish the preservation obligation necessary for an adverse inference instruction where the party seeking the instruction is “a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.” Byrnie, 243 F.3d at 109. Relying on Byrnie, plaintiff argues that the Malik defendants had a duty to preserve arising from professional responsibility rules and attorney ethics opinions. Pl.’s Mem. in Support of Mot. for Sanctions at 13 (citing Assoc. of Bar of City of N.Y. Comm. On Prof. and Judicial Ethics, Formal Opinion 2008-1, A Lawyer’s Ethical Obligations to Retain and Provide a Client with Electronic Documents (July 2008)).”
“The Malik defendants have not responded to that argument and have made no attempt to explain why those rules and ethics opinions, which require lawyers to preserve electronic documents relating to a representation and seek to protect clients such as AmTrust, do not trigger an actionable duty to preserve under Byrnie. Therefore, I conclude that the Malik defendants had a duty to preserve in 2008 when they represented AmTrust in the loan transactions at issue. I also note that the Malik defendants have not argued that this retention obligation excludes the types of emails at issue in the instant motion.”
The judge scheduled an evidentiary hearing to determine whether the e-mails were destroyed with a “culpable state of mind” which would result on the adverse spoliation inference and to rule on the request for sanctions.
Bottom line: This is an example of how the ethical duties and obligations of lawyers, in this case the judge’s finding that the New York ethics rules required that the lawyer preserve client confidential electronic documents and information, may intersect and have a significant impact in other forums, including this litigation. In addition, this case involves the preservation of electronic information, i.e. e-mails which are not always preserved in hard copy format and may be deleted or otherwise unintentionally lost.
As I have said many times in the past, Florida lawyers should preserve and maintain all client confidential documents and information, including those in electronic form, for at least 7 years, which is one year more than the period of time required by the Florida Bar rules to preserve client trust account documents and information.
Be careful out there!
| As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A. PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES (AND MUCH MORE!) My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms. If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at [email protected]. You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida. I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues. Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it. Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. 2454 McMullen Booth Road, Suite 431 Clearwater, Florida 33759 Office (727) 799-1688 Fax (727) 799-1670 NOTICE OF CONFIDENTIALITY: This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules. If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited. If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system. Thank you for your cooperation.
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