The Ethics of Certificates of Service and Certificates of Mailing

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

It has happened to all of us. Your attorney is running out the door to an appointment and although she has signed the pleading, she has forgotten to sign the certificate of service. “No problem,” you think, “I’ll just sign it myself.”

STOP!

Although it may seem reasonable for the paralegal or legal secretary to sign the Certificate of Service, Texas rules specify only an attorney or the party may sign.

Specifically, Tex. R. Civ. P. 21 states as follows:

If there is more than one other party represented by different attorneys, one copy of such pleading shall be delivered or mailed to each attorney in charge. The party or attorney of record shall certify to the court compliance with this rule in writing over signature of the filed pleading, plea, motion or application.

Surprisingly, the Texas Rules of Appellate Procedure are not as clear. Tex. R. App. P. 9 states that the certificate of service must be signed by the person who made the service, but does not specify it must be an attorney. However, the rule also specifies that a document filed on behalf of a party represented by counsel must be signed by at least one of the party’s attorneys.

Although this rule doesn’t specifically state that an attorney must sign the certificate, it also doesn’t specifically allow for anyone else to sign. Since the Texas

Rules of Appellate Procedure are based on the Texas Rules of Civil Procedure, the safest course would be for an attorney to not only sign, but also make certain the service is made as declared.

Fed. R. Civ. P. 5(d) doesn’t specify that only an attorney may sign but also doesn’t specif y who else may sign but Rule 11 states that all papers shall be signed by the attorney or the party if not represented by an attorney. Again, lacking anything stating otherwise, the safest course would be for an attorney to sign and ensure that service is made as declared.

It is interesting to note that the local rules for the Bankruptcy Court for the 35 Southern and Western Districts of Texas specifically state that the certificate of service must be signed by an attorney.

I could find no case law directly on point, but most of the case law I found dealt with unsigned or missing certificates of service. There was one case (not a Texas case) that mentioned that a party had raised the issue of whether a certificate of service signed by a non-attorney was valid. However, that was not one of the primary issues in the case and there was no further mention of how that issue was resolved.

I did not search the rules for any administrative agencies, but if you regularly do work before a particular agency, you should review its rules for certificates of service and certificates of mailing. For example, the U.S. Patent and Trademark Office, in its Trademark Manual of Examining Procedure, includes the following among its rules for certificates of mailing:

The certificate of mailing must: . . .

(2) be signed by a person who has a reasonable basis to expect the correspondence to be deposited in the mail on the date indicated. . . . It is suggested that the certificate be signed by the applicant or the party involved in the proceeding, or by the attorney for such person. If someone else signs, it should be a responsible person in a position to know that the mail was deposited on the date specified.

We may never know whether the reason there is virtually no case law on the matter of non-attorneys signing certificates of service is because no one has thought it was a problem or because virtually all certificates of service are signed by attorneys.

However, when operating under rules other than the Texas Rules of Civil Procedure, it would always be advisable to have an attorney sign the certificate of service.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.