GUEST BLOG FROM BARRY BARNETT
I welcome Barry Barnett as a Guest Blogger with his blog concerning a law firm that fell for a email that sounded too good to be true and which was really Phishing. Barry’s Blawgletter provides great thoughts, and insights. I read his blogs regularly. Over the years Barry and I have had a number of cases together and he is an outstanding lawyer. Barry is a partner at Susman Godfrey and I’m sure we will see more Guest Blogs from him in the future.
Have you gotten one of those emails that says a non-U.S. outfit has big money coming to it but somehow no one there knows any U.S. lawyers and that the sender wants you to help it get the big money? Perhaps you could advance a small sum — $10,000 perhaps — to grease the skids?
How about one of those emails that promises an up-front retainer and lots of work to bill against it?
Or one that gives your firm the privilege of holding the new client’s big money with no strings other than that you’ll receive a fee of X percent for your fabulous help?
Believe it or not, some folks fall for that sort of thing. And Blawgletter today feels a perverse joy in knowing that, per the Second Circuit, the law will not rescue them from their folly.
The case involved a firm that for some reason received and deposited into its account a check for $225,351, which the firm seemed to regard as partial payment of a debt to a "new client" of the firm. Shockingly, before the check officially cleared, the new client asked for almost all of the funds.
The firm’s bank reported the funds as "available". And, per the new client’s requests, the firm wired $182,780 and $27,895 to, er, South Korea and Canada.
On the day of the second wire, the Federal Reserve Bank returned the check for $225,351, deeming it a fake. The bank charged the firm for the total plus — and we think this hurt the most — a $10 fee for handling the return of the bad check.
The law firm sued the bank for breach of contract. It alleged that the bank should not have called the proceeds of the fake check "available" before the check had in fact cleared. But the district court granted summary judgment to the bank. The Second Circuit affirmed, noting:
The obvious flaw with [the firm’s] argument is that Citibank did not advise F&M that the funds were "available for withdrawal as of right." Rather, CItibank advised only that the funds were "available," without representing that the Check had cleared or that the funds had been collected or that settlement had become final. "Available" is different from "available as of right."
Fisher & Mandell LLP v. Citibank, N.A., No. 10-2155-cv, slip op. at 15 (2d Cir. Feb. 3, 2011).