Best Practices for Online Communication
The American Bar Association formally opines lawyers should provide competent representation for clients with the appropriate legal knowledge, skill, thoroughness, and preparation. ABA Rule 1.1 outlines these duties, and comment 5 makes clear that properly using technology is necessary when competently representing a client. If best practices aren’t followed throughout the litigation process, duties to clients may be breached. For this reason, operating technology from the perspective of the client’s best interest is a requirement for any lawyer.
When information is lost or neglected in the cyber world, a client’s right to technologically competent representation is tarnished, potentially leaving them in a disadvantageous position. Such was the case with Emerald Coast Utilities Authority, a firm that lost important information regarding attorney fees to be paid to an opposing party in a spam folder. When the firm lost these documents they missed the deadline for appeal and subsequently lost their client.
In an ensuing appeal case, the First District Court of Appeal for the State of Florida sided with the initial trial court’s decision. The losing party, therefore, was denied the appeal of the fee award. Court officials decided misplacing important documents in spam folders was not an excusable mistake and the order was not reversed.
Relief from Final Judgments
Model Rule 60, Relief from a Judgment or Order, allows corrections to be made based on clerical mistakes and may relieve a party from final judgments, depending on the nature of the mistake. In the case of Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC; A Florida Limited Liability Company, the mistake was not deemed excusable and the order was not reversed due to the way the firm set up their servers.
The firm’s email system wasn’t configured to include logs or back up data, preventing precious information from being recovered when needed. Instead, the system was designed to delete emails labeled as spam. The IT employee strongly advised against this strategy but the firm didn’t listen to his counsel, a detail that was strongly considered by the appellate court when making their final decision.
In reference to Model Rule 60, no mistakes were made that justified relief from judgment. The firm made an intentional decision to set up a server without backup measures, therefore disqualifying an appeal for their case. If more care had been taken to design a secure email system, specifically in reference to spam filters, the firm may have had a chance at appealing attorney fees – and they may not have lost a client.
Email Systems Are Not Exempt
The exchange of online information should be handled carefully and thoroughly, as technology is not excluded from competent representation. If client information is shared or sent online, it needs to be protected by litigators who confidentially represent their clients. Therefore, it’s important for lawyers and firms to set up email systems that keep track of all documents and store them in the appropriate folders.
As technology changes, so do the rules governing litigation. Continuing to learn about best practices is necessary in an age of rapid technological development, and staying abreast with the latest changes gives any lawyer an advantage in conducting his or her case. More than awarding parties advantages in litigation, constructing effective email systems safeguards firms from any unwanted disciplinary action. Creating a thorough plan for sharing documents online protects litigators and ensures clients are competently represented.