Update: Ethics Issues of E-Filing

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

As more and more courts permit e-filing, the opportunity for more e-filing issues, ethical and otherwise, increases, as reflected in two recent federal court decisions.

In June 2009, the 5th Circuit addressed the issue of an incorrect and then incomplete filing of a notice of appeal in Kinsley v. Lakeview Regional Medical Center, 2009 U.S. App. Lexis 12077 (5th Cir. 2009). The district court had granted Lakeview’s motion to dismiss on November 29, 2007. Pursuant to the rules, the notice of appeal was due on December 31, 2007. Kinsley filed a document on December 26th that was supposed to be a notice of appeal. However, the document turned out to be a Request for Oral Argument that Kinsley previously filed back in September. The court’s docket entry for the December 26th document describes it as “deficient” as it was not a notice of appeal as Kinsley claimed in the transmittal. The docket sheet reflects another filing of the same Request for Oral Argument (also alleged in the transmittal to be a notice of appeal), followed by a notice of appeal that was deemed sufficient, both on January 2, 2008.

The court addressed whether Kinsley’s filing on December 26th was “sufficient and timely” and if not, was the December 31st deadline in any way extended, making her January 2nd filing of a sufficient notice of appeal timely. Although Kinsley offered several arguments in her defense, the court found that Kinsley’s filing on December 26th was insufficient and not timely, and that she had not availed herself of any of the possible procedures to request an extension of the filing deadline for the notice of appeal.

The 8th Circuit also ruled on an e-filing issue in June 2009. In American Boat Company, Inc. v. Unknown Sunken Barge, 567 F.3d 3 48 (8th Cir. 2009), the court considered American Boat’s motion to reopen the time to file an appeal. Counsel for American Boat claimed it had not received notice from the district court denying American Boat’s motion to amend the judgment. The district court had electronically sent the order denying American Boat’s motion to amend the judgment to all counsel of record but American Boat’s counsel claimed it never received the notice.

After an evidentiary hearing, including testimony by computer experts and evidence that the notice had been received by the law firm’s ISP server, the court ruled against American Boat. It was determined that the most likely explanation was that the attorney’s secretary must have inadvertently deleted the email when she accessed the emails through the web rather than from her desk computer.

These recent rulings highlight the care that must be taken when filing electronically. If your office doesn’t already have a procedure for attorney verification of documents prior to filing them electronically, it should. There are several methods but the best way is to print out the document to be filed, have the attorney sign it, and then that document goes in the file. Further, those responsible for submitting documents via e-filing systems should not just rely on the document name to determine which documents to file. Documents should be opened and double-checked to ensure the correct document, and correct version, is being filed.

To minimize the chance of errors, it is advisable to have more than one person responsible for receiving notices from the court. In American Boat, the attorney did not have a computer so his secretary was the only person to review the attorney’s and her emails. With no one else reviewing the emails received by the court, there was no backup for the secretary.

While e-filing is a wonderful convenience, procedures should be in place to minimize the potential for oversights and errors.

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 West Legalworks.