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MISS JESSIE'S LLC, Akiro, LLC, MJ Soho Salon, LLC, Hancock St, LLC, MJ Business Corp., Miss Jessie's Holdings, LLC and Miko Branch, Petitioners, v. D. Reeves CARTER, Esq., Respondent.
Petitioners bring this special proceeding against their former attorney, respondent D. Reeves Carter, seeking to obtain a copy of the electronic file containing the work he did for him as well as any emails he received or sent on their behalf using his private email accounts. (citing Disciplinary Rule [DR] § 9-102 [c]  ). They concededly have some legal documents—the paper file—as well as access to the emails he sent using his company email address. However, they argue that he used two personal email addresses for some correspondence relating to his work for them, and that they have discovered there are missing documents when they were confronted with the missing material by other parties while petitioners' new counsel's performed work for them. Petitioners also request that respondent destroy his copy of all documents relating to his work for them, whether electronic or paper.
Respondent objects to the petition, arguing that he already provided them with a complete record and that petitioners either have the record or have lost it. He states that he should not be required to provide the materials a second time. He notes that petitioners' statements indicate that they have documents from the file as well as all documents from his company email. He contends that he is entitled to retain a copy of his work (citing Moore v. Ackerman, 24 Misc 3d 275, *281, 2009 NY Slip Op 29105, **5 [Sup Ct Kings County 2009] ). He contends that he has not used any private information of petitioners in violation of his ethical obligations, but instead only has looked at documents such as trademark filings, which are a matter of public record.
In addition, respondent cross-moves for sanctions and for dismissal of the proceeding. He argues that petitioners have brought a baseless proceeding without regard to the negative impact on his legal career, including his reputation and the cost of his malpractice insurance. Petitioners reply that here, respondent has established a business that is in competition with theirs, and therefore respondent has no right to retain a copy of his papers (citing DR § 4-101).1 They further reply that respondent has not shown that their conduct is sanctionable as they have the right to seek a copy of respondent's records (citing, e.g., Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP, 91 NY2d 30  ).2
The Court heard argument on this matter on June 18, 2018, and the parties filed a copy of the transcript on August 2, 2018. The Court directed respondent to prepare a privilege log for any materials he claimed were privileged and to provide the documents for in camera review. The log respondent prepared was unsatisfactory, both vague and conclusory. Further communications on this issue did not yield a more precise document.
In addition, on several occasions the Court attempted to mediate the parties' dispute. During one of these conferences, respondent stated that he would provide the requested materials if petitioners paid for the work at his hourly rate. Moreover, respondent stated that this project would take a significant amount of time because he refused to save the documents to a flash drive for fear that petitioners would alter the documents. Instead, he stated, he must go through the voluminous documents one at a time before printing them, and then he would have to mail the materials to petitioners in Florida. He also demanded a list of the documents that petitioners already have so that he does not have to produce copies of materials already in their possession. When, on September 6, 2018, the parties had not reached a settlement of this dispute, the Court took the matter on submission.
The Court grants the petition but directs petitioners to pay respondent a reasonable copying cost for the following reasons. A client has “an expansive general right ․ to the contents of the attorney's file, upon termination of the attorney-client relationship” (Sage, 91 NY2d at 36). Moreover, respondent has not persuasively argued that an exception to this rule, such as privilege, applies. Respondent cannot withhold these documents from his former clients.
Petitioners must compensate respondent for the copying costs because, “unless a law firm has already been paid for assemblage and delivery of documents to the client, performing that function is properly chargeable to the client” (id. at 38; see American Stevedoring, Inc. v. Red Hook Container Term., LLC, 134 AD3d 419, 419 [1st Dept 2015] ). The cost for copying the file, however, must be reasonable (see Moore, 24 Misc 3d at *283-84, 2009 NY Slip Op at **6-7 [charge of $0.75 per page was not reasonable] ). Here, respondent suggested that it would take weeks of work to replicate the electronic files and the emails because he does not want to provide an electronic copy to petitioners. He claims that if he provided an electronic copy, it would enable petitioners to alter the documents. This argument lacks merit, as petitioners have the right to use the work for which they paid—including, at their discretion, the right to create other documents based on the ones in question or to modify documents after future negotiations. Moreover, respondent does not have the right to charge them for the scores of extra hours it will take because he is choosing a more laborious route. Respondent either can (1) copy the documents onto a flash drive for petitioners, or (2) assemble the papers and have them copied at a copy center such as Kinko's, with petitioners responsible for reimbursing respondent for the copy center's bill. As a third alternative, if petitioners have New York City counsel, petitioners' attorney can make arrangements with respondent to retrieve the file at respondent's office for the purpose of copying the documents.
The Court declines to issue an order directing respondent to destroy his files, which include his work product. Petitioners have alleged that respondent has set up a competing business, but they have not shown that he has used their confidential information and secrets for his company or for other clients. Furthermore, respondent is entitled to use the knowledge and general experience he has gained—the product of his work product which were not confidential — for his new clients. In addition, respondent has a continuing fiduciary duty to his former clients, which includes “the duty to preserve client confidences and secrets” (Keller v. Loews Corp., 69 AD3d 451, 451 [1st Dept 2010] ). Petitioners stated at oral argument that they do not allege breach of fiduciary duty at this time. If respondent violates such duty in the future, petitioners may pursue all appropriate legal remedies.
The Court denies respondent's motion to dismiss for the reasons above. In addition, as petitioners assert, citing Hunts Point Terminal Produce Cooperative Assoc. v. New York City Econ. Dev. Corp. (54 AD3d 296, 296 [1st Dept 2008] ), courts award sanctions only when a party's conduct has been outrageous (see, e.g., Melnick v. Khoroushi, 57 AD3d 414 [1st Dept 2008] ). Here, on the other hand, petitioners have a legitimate interest in obtaining a complete copy of the respondent's file, and when he failed to provide it they had the right to bring this proceeding.
Accordingly, it is
ORDERED that the petition is granted in part, and respondent is directed to provide petitioners with a complete copy of the materials they requested—that is, (1) his electronic file relating to his representation of them and (2) emails from his two private accounts which relate to his representation of petitioners, within 30 days of the filing date of this order, by one of the proposed methods, with costs as provided above; and it is further
ORDERED that the petition is denied to the extent that it seeks an order requiring respondent to destroy his files; and it is further
ORDERED that respondent's cross-motion is denied.
1. At oral argument, petitioners stated that they learned of respondent's competitive business enterprise when some of the manufacturers with which they do business mistakenly wrote to Miss Jessie's about their transactions with respondent's business.
2. Petitioners also argue that respondent has conceded all the allegations in the petition. The Court rejects this argument. Respondent specifically stated that he treated the allegations as true for the limited purpose of arguing his motion to dismiss.
Carmen Victoria St. George, J.
Response sent, thank you
Docket No: 651682/2018
Decided: October 16, 2018
Court: Supreme Court, New York County, New York.
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