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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3580" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/10/Spam-300x200.jpg" alt="" width="300" height="200">If the clerk of courts e-mails you an order that your client must pay $1 million in attorney fees to the opposing party, but your spam filter catches the&nbsp;e-mail and then deletes it after 30 days without alerting&nbsp;you, and you&nbsp;therefore fail to appeal the order in time &mdash; well, your client may be out of luck, as a Florida court of appeals <a href="https://scholar.google.com/scholar_case?case=12400286001919764205&amp;q=Emerald+Coast+Utilities+Authority+&amp;hl=en&amp;as_sdt=4,10">ruled</a> recently.&nbsp; (There is a motion for <a href="http://filehost.thompsonhine.com/uploads/1D15-5714_-_Docket_db81.pdf">rehearing pending</a>.)
Spam canned?
The&nbsp;ruling thus far is a cautionary tale and shines a light on some ethics&nbsp;duties&nbsp;as they might apply to your process for handling and keeping on top of spam e-mail &mdash; especially the duties of diligence (<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence.html">Model Rule 1.3</a>) and competence (<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html">Model Rule 1.1,</a> and see cmt.&nbsp;8 on technology).
The facts:&nbsp; Company sued Utility Authority, and Company won.&nbsp; Company&rsquo;s Lawyer moved for attorney fees, and after more than a year, the trial court granted them &mdash; <a href="http://www.abajournal.com/news/article/law_firms_automatic_deletion_of_spam_emails_is_blamed_for_failure_to_file_t">reportedly as high as $1 million</a>.&nbsp; It&rsquo;s worth noting that during the time that his client&rsquo;s fee motion was pending, Company&rsquo;s Lawyer had the firm&rsquo;s paralegal check the court&rsquo;s on-line docket every three weeks for a ruling.
When the court finally issued the ruling, the clerk e-mailed it to all counsel.&nbsp; Technology experts who later&nbsp;testified said that the e-mail server at the Utility Authority&rsquo;s Lawyer&rsquo;s firm received the e-mail. But the firm&rsquo;s e-mail filtering system was configured to drop and permanently delete e-mails perceived to be spam without further alert.
Apparently that&rsquo;s what happened to the e-mailed attorney-fee order.&nbsp; After 30 days passed without the fee award being paid&nbsp;(i.e. after the time to appeal the order had run), Company&rsquo;s lawyers contacted opposing counsel.
No relief
The Utility Authority moved for relief from the judgment, arguing that its lawyers didn&rsquo;t receive the order in time to file an appeal.&nbsp; The trial court rejected the argument, and the court of appeals agreed:&nbsp; this was not &ldquo;mistake, inadvertence, surprise or excusable neglect,&rdquo; it held.&nbsp; The&nbsp;Utility Authority&rsquo;s&nbsp;Lawyer&rsquo;s firm&nbsp;did receive the order &mdash; the equivalent, the court of appeals said, of placing a physical copy of the order in a mailbox.&nbsp; The e-mail&nbsp;just went right to spam, from where it apparently was deleted without further notice.
At the hearing on the motion, the law firm&rsquo;s former IT consultant testified that he&nbsp;advised against that configuration; the firm rejected the advice, as well as advice to get a third-party vendor to handle spam filtering, and advice to get an online backup system that would have cost $700-1200 per year.&nbsp; Financial considerations played a part in these decisions, the court found.
The decision to use this filtering configuration despite warning was a conscious decision to use &ldquo;a defective e-mail system without any safeguards or oversight in order to save money.&nbsp; Such a decision cannot constitute excusable neglect,&rdquo; said the court of appeals.
Adding further sting, the court noted the Company&rsquo;s Lawyer had a paralegal regularly check the court&rsquo;s online docket during the long pendency of the fee motion.&nbsp; If the Utility Company&rsquo;s Lawyer had done something similar, the court said, he would have received notice of the fee order in time to appeal.&nbsp; &ldquo;The neglect&rdquo; of that duty &ldquo;was not excusable.&rdquo;
Spam:&nbsp; not tasty but good to check
The&nbsp;harsh result&nbsp;here may yet be ameliorated if the court of appeals grants rehearing.&nbsp; In the meantime, however, the scary scenario points to the need to pay attention to your firm&rsquo;s&nbsp; technology and processes for&nbsp;handling spam.&nbsp; And old-fashioned procedures like checking the court&rsquo;s docket can also help avoid an unpalatable spam situation.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Deleted spam leads to missed appeal; not excusable, FL court of appeals holds