New York District Court Judge finds that law firm had a duty to preserve e-mails from former client and failure to preserve may result in adverse spoliation instruction

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.





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  You can find my law firm on the web at 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.

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Clearwater, Florida 33759

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About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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