The duty of the attorney to his client is fiduciary nature; meaning, he cannot place his personal interests above or in conflict with those of the client. The consequences for failing to uphold this fiduciary duty can lead to litigation with the client as well as various civil and even criminal penalties. This axiom is illustrated by the recent filing of a motion in connection with a legal malpractice lawsuit in the US District Court of New Jersey.
The motion was filed on behalf of two former principles of a company that was subject to almost $19 million in fines by the Federal Trade Commission when it changed its business model without first notifying the FTC. The two former principals were held personally liable for that amount. They have since filed suit against the attorney who is representing them at the time, claiming that his advice to change the business structure of the company to avoid FTC scrutiny, coupled with the failure to notify the FTC of such change, then to the imposition of the fines that they had to pay.
In a recent motion, the plaintiffs claim that when the attorney representing them in the FTC lawsuit recommended that they were acting on the advice of their corporate counsel, their former corporate counsel – who is now the defendant in the medical malpractice lawsuit – purposely destroyed 16 years' worth of emails relevant to the litigation.
The motion seeks multiple sanctions, including:
- Preventing the defendant attorney and his law firm from making any claims of their own in connection with the advice they gave to the plaintiffs' company; and
- Having the court draw an adverse inference against the attorney based on the destruction of the claimed email evidence, as well as hold the defendant attorney liable for the costs incurred in connection with legal work that has to be done because of that destruction.
Although the vast majority of the attorneys in this state are ethical professionals, as in any occupation there will be some who will not be. Holding them accountable when they breach their fiduciary duty or when their professional incompetence harms their clients is something that will require the assistance of legal counsel experienced with legal malpractice case work.
Source: New Jersey law Journal, "Lawyer Faces Sanctions over Missing Emails in Legal Mal Suit," Charles Toutant, Oct. 26, 2015