Lawyers, Check Your Spam Emails

Do you know what’s in your spam inbox? You should. A cautionary tale from Florida makes it clear that a “defective email system” is no excuse for missing important communications. See Emerald Coast Utilities Authority v. Bear Marcus Pointe¸ LLC, Case No. 1D15-5714 (Fla 1st DCA 2017).

In March 2014, the firm of Odom & Barlow, P.A., represented the appellant in an eminent domain proceeding.  The trial court entered an order assessing attorney’s fees against the appellant and sent its order to the firm’s designated email address.  The appellant’s lawyers, however, never received the email and, as a result, failed to appeal timely.  When they learned of the order, the lawyers filed a motion to permit an untimely appeal, arguing that their firm’s spam filter intercepted the court’s email and permanently deleted it.  Id.

The court noted that the firm was on notice of the spam filter’s faulty configuration1 but “made a conscious decision to use a defective email system without any safeguards or oversight in order to save money.  Such a decision cannot constitute excusable neglect.”2 Id.

In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that to be professionally “competent,” a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA, Commission on Ethics 20/20 Resolution 105A (August 2012). A competent lawyer who uses email—and all should—must understand the considerable risks associated with automatic, background spam filtering. In my view, a lawyer should never trust a spam filter. Instead, a lawyer should routinely scan the lawyer’s spam inbox to look for improperly classified communications. The duty of competence requires nothing less.

  1. William Hankins, a former IT consultant for Odom & Barlow, testified that he warned the firm’s partners about the spam filter.  He advised the firm “to hire a third party that handled spam filtering on a full-time basis,” but the firm rejected his recommendation because it did not “want to spend the extra money.”  Id.
  2. The existence of excusable neglect permits a court to exercise discretion to set aside a final judgment under Florida Rule of Civil Procedure 1.540(b).
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