E-filing is a convenience for law firms and the courts. While many of us are relieved there is no more need to rush to get a pleading delivered to the courthouse by 5 p.m., there are ethical issues to be considered. Among those issues is the process of having the attorney approve documents before they are filed.
Non-attorney staff members, including paralegals, are permitted to file documents electronically with the courts. However, it is also important the document being filed has been reviewed and approved for filing by an attorney. When we were required to file hard copies of documents, attorneys signed the document which also was an indication the attorney had reviewed the document, or should have read it. With electronic copies of documents, it can be more challenging to confirm the attorney has reviewed the pleading and to document the attorney’s approval.
It may not be sufficient to send a pleading to the attorney an attachment to an email and have the attorney respond via email confirming the document is approved for filing. Even if the emails are saved, it may be difficult to prove which version of a document was attached and if the attorney intended to approve that document or a previous or subsequent version that was also attached to an email. A verbal approval or an approval on a sticky note would also be difficult to verify later if a question arose as to whether the pleading was approved prior to filing.
Every office should have a procedure for approvals of documents prior to filing. To be effective, the system must be followed each time, perhaps including a method for notating which paralegal or staff member filed the document.
The best way to confirm the attorney’s intention to approve a particular version of a document for filing is to have the attorney sign a hard copy of the pleading. The executed copy is then retained either in hard copy or a scanned copy of the signed hard copy. If the client must approve a document before it is filed, it is safest to have the client sign a hard copy and mail or email the document back to the firm.
While there is no rule requiring the attorney to sign a hard copy and for the signed copy to be maintained by the firm, doing so is not only the best way to verify approval of the document to be filed, it also protects everyone, including paralegals, from misunderstandings and miscommunications. Although occasional errors and mistakes may still occur, as they did when filing hard copies of documents, having a clear procedure will reduce the number of errors and permit analysis to determine why a particular error occurred.
When carrying out an attorney’s instructions, whether e-filing documents or other duties, it is incumbent upon the paralegal to make every effort to avoid any questions regarding the attorney’s intent.
Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.