Spam Slips Through the Cracks
In January 2013, the controversy began when the trial court held a hearing on the winning party's motion for attorney fees. Apparently due to an oversight, the court still had not entered a final award of attorney fees more than a year later. Considering this extraordinary delay, counsel for the prevailing party asked for a status conference, recognizing that the order had probably slipped through the cracks. Attorneys for the losing party, who were being taxed fees, did not join in the motion for a status conference, however—potentially missing an opportunity to stay informed. Just before the status conference, the trial court issued its order awarding attorney fees to the winning side.
The losing firm did not learn of the trial court's order until the time to file an appeal had already run. The court's email transaction log showed that the court's server actually emailed the order to the parties, who received it. Although, the losing firm denied having ever seen the email, and no record existed of the actual email
The trial court determined that the most likely explanation for the strange events was that the firm's email server misidentified the email as spam. The firm had purchased the new email server in the interim between the hearing and the court issuing the order. Tellingly, the firm's IT employee configured the spam filter to automatically delete any spam messages before anyone viewed them and create no record. The firm's IT employee had strongly advised against this unwise setup.
Under Florida Rule of Civil Procedure 1.540, an analog of Federal Rule of Civil Procedure 60, the firm sought relief so the court could reenter the order, allowing the firm to appeal. But, the trial court found that the firm had not shown the mistake was excusable. On appeal, the First District Court of Appeal for the State of Florida determined that the trial court had not abused its discretion in denying the losing party's appeal of the fee award.
Listen to the IT Experts
The appellate court focused on the fact the firm's IT expert warned the lawyers about the unreliability of the email system setup and they went ahead despite the known risk. An expert recommended an online backup system for the firm's email would have cost between $700 and $1200 each year, but the firm rejected the recommendation.
"The key take away for practitioners is that if you hire an expert to provide advice, you need to take their recommendations seriously," says Scott E. Reiser, Roseland, NJ, cochair of the Section's Ethics and Professionalism Committee. "If the firm had a system in place for addressing emails that were mistakenly labeled as spam, then the court might have been more inclined to find that the firm had shown excusable neglect and deserved a chance to appeal the attorney fees award," Reiser explains.
Besides not having online backups or records, the firm had no system for monitoring the spam filter, which deleted immediately all messages and kept no record of the received message. "It is important to have someone from the firm checking the spam folder on a regular basis, if not daily. It is inevitable with electronic communications that some message will incorrectly slip through the spam filter, and attorneys need to be prepared," says Kirk.
Lawyers Should Monitor their Email System
In general, lawyers have a duty to provide their clients with competent representation, as ABA Model Rule for Professional Responsibility 1.1 makes clear. Comment five of that Rule requires lawyers to make use of "methods and procedures meeting the standards of competent representation," including technology related procedures. Failing to follow best practices when dealing with technology can be a breach of a lawyer's duty to his or her clients.
"Many states are have either enacted or are considering enacting ethical rules related to technological competence that provide more specific guidance about an attorney's obligations to provides competent representation," concludes Reiser. "As managing technology becomes an increasingly essential part of any legal practice, attorneys have an on-going obligation to competently manage and oversee their information technology systems."
Stephen Carr is a contributing editor for Litigation News.