A recent ruling out of the Eastern District of New York against a solo practitioner who neglected to manage her firm’s technology has resulted in her having to pay fees and costs as a sanction and provides a cautionary tale for those similarly situated.

The case for legal malpractice was brought against this solo practitioner by a client that alleged her negligent representation caused their business to file bankruptcy. In the course of discovery, the court learned that the attorney had disposed of her office computers without preserving emails and electronic files relevant to the case. It was also discovered that she:

• Had no idea what kind of computers were used by her paralegals and office staff and if they were networked;

• Still used an old AOL address for her work emails while one of her paralegals used an Outlook address;

• Believed that AOL would preserve all her emails although her account was set to delete emails after 30 days;

• Contracted for tech support from someone who had never worked with a law firm. He did not back up the office computers in the 10 years he consulted with the firm;

• Had no policies regarding office use of computers. Many of her staff used them to download things they shouldn’t, leading to viruses that shut down the computers and lost files;

• Had no written policy in place for retention of electronic files.

While I understand that most solos start out on a shoestring, you are breaching your client duty and likely violating ABA rules by not keeping up with law firm management technology.

For example, in May, the ABA’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 477, stating that attorneys need to consider using more secure electronic communications methods than standard email for client communications. The committee concluded that attorneys should consider using encryption for communications that are deemed sensitive or when the likelihood of disclosure is higher if additional safeguards are not used.