By Joan C. Rogers, Bloomberg BNA
A Big Law partner received a public censure in Colorado this month for not promptly coming clean about a client’s deletion of emails that were central to pending litigation.
Randall H. Miller, a partner in Bryan Cave’s Denver office, acknowledged that that he violated his ethical duty of candor to the court by not taking steps to correct the client’s nondisclosure of the loss.
The decision underscores the personal peril that litigators face for keeping quiet about spoliation. When relevant evidence gets destroyed, lawyers need to speak up right away and face the music even if they believe the missing material has been recovered, the case makes clear.
The spoliation occurred early in civil litigation in which Bryan Cave represented the defendants. After the problem came to light, the firm withdrew. Later the court imposed sanctions, and Bryan Cave paid the full amount.
Disciplinary charges against Miller followed. He entered into an agreement with Colorado regulation counsel in which he waived a hearing and admitted violating Colorado Rule of Professional Conduct 3.3(a)(3), which commands lawyers not to offer false evidence and requires them to take reasonable remedial measures if they discover that’s happened.
Presiding Disciplinary Judge William R. Lucero approved the parties’ stipulation in a brief order that publicly censures Miller for violating Rule 3.3(a)(3) and dismisses charges that he violated Rules 8.4(c) (dishonesty, fraud, deceit, or misrepresentation) and 8.4(d) (conduct prejudicial to justice).
In the underlying case, Bryan Cave represented defendants who had been sued by their former employer after they resigned and started a competing business. The clients told Miller they didn’t take or possess any information of their former employer.
Early in the litigation, Miller learned that one client, John Landers, had access to old emails of the company in certain folders in his AOL account after he resigned. Also, Miller found out that these emails had been deleted on the instruction of another Bryan Cave attorney after the suit was filed.
The deletion occurred through a “miscommunication” between Miller and the other attorney, according to the parties’ stipulation in the disciplinary case.
On the day after the deletion, Miller filed an affidavit from Landers that didn’t mention those facts.
Shortly after that, the clients told Miller that they had likely recovered all the emails deleted at the attorney’s instruction, and those emails were subsequently produced in discovery.
However, Miller didn’t disclose the fact of the deletion and alleged recovery to opposing counsel until the start of deposition discovery more than six months later.
Breach of Candor
In the stipulation, Miller agreed that in waiting to disclose these facts to opposing counsel, he violated the part of Rule 3.3(a)(3) that requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a evidence offered by a client is false.
According to a summary prepared by the Office of the Presiding Disciplinary Judge, Miller was negligent in determining whether the statements in his client’s affidavit were false, and he was reckless in not taking remedial action to timely disclose the false statements, the summary said.
The disciplinary stipulation identified one aggravating factor—substantial experience in the practice of law—and six mitigating factors: no prior discipline; timely good faith effort to rectify the consequences of the misconduct; full cooperation in the disciplinary proceeding; good character and excellent reputation; imposition of other penalties; and remorse.
A public censure was the appropriate sanction under the circumstances, the stipulation said.
Sanction for Spoliation
In the underlying litigation, the court issued two orders regarding the spoliation. In one order, it held that Bryan Cave’s clients couldn’t claim the attorney-client privilege or work product protection for communications relating to the deletion of emails.
In another order the same day, the court granted sanctions, concluding that the destruction of emails warranted adverse inference jury instructions as well as an award of attorneys’ fees to the opponent.
The sanctions order said that Miller suborned perjury from Landers by reviewing and filing the false affidavit, and that he acted unethically by not telling the court or opposing counsel about the spoliation that Bryan Cave had ordered.
Erin R. Kristofco and Jacob M. Vos,Assistant Regulation Counsel, Denver, represented the state. Haddon Morgan & Foreman P.C. and Lewis Roca Rothgerber Christie LLP represented Miller.
The case is: People v. Miller, 2017 BL 208514, Colo. Off. Presiding Disciplinary Judge, No. 16PDJ067, 6/1/17
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