Historically attorneys have kept one eye on case law, bar guidelines and rules applicable to their practice, and staying current was as simple as a routine review of printed bar journals, ethics opinions, and case notes. With prevailing technology, electronic transmission of filings and discovery can be performed easily and quickly by a computer, but the profusion of judicial opinions, practice manuals, and rules which are evolving to accommodate new technologies render “best practices” a moving target. With the launch of eFiling in Illinois, here are six guidelines offered to help firms formulate best practices around the Rules of Professional Conduct where technology is concerned, each with illustrative case law interpretations of how technology and ethics must coexist.
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403 n.7 (4th Cir. 2010) teaches continued monitoring of the docket even when experiencing computer issues. There are many ways to monitor email and websites where implementing “standard operating procedures” ensure nothing is missed. That means checking the system and not just relying on email. If the eFiling system has an online inbox, check it regularly and have staff do so as well. In Fox v. American Airlines, Inc., 389 F.3d 1291 (D.C. Cir. 2004) the court took the harsh stance that even if the court’s system malfunctions and does not send an email to the attorney, it is still the attorney’s obligation to monitor the system. The court viewed such excuses as the 21st-century version of “the dog ate my homework.”
For a document needing to be signed by the client, be sure to obtain a hard copy signature and keep it on file. Filing an electronic petition represents to the court that the attorney secured an originally executed petition physically signed by the client. Two cases cover this need: In re Wenk, 296 B.R. 719 (ED. Virginia. 2002) and In Re Daw, B.R. No. 09-00690-TLM (D. Idaho, 2011).
The next case appertains to any area of law practice or even life... the cover up is often worse than the crime. In Baycol Steering v. Bayer Corp., 419 F.3d 794 (8th Cir. 2005) counsel eFiled a motion to intervene without the client’s signature and then attempted to cover up his actions and didn’t inform the client that he filed it, nor did he attempt to withdraw the motion.
Attorneys and staff need to be well trained on the electronic filing system(s) being used in the jurisdictions in which they practice and be sure to review their work and double check all electronic filing requirements are met. Iowa Attorney Disciplinary Bd. v. Dolezal, 796 N.W.2d 910 (Iowa 2011) held that the incompetence of a non-attorney cannot be used as an excuse, in fact, they are imputed to the attorney.
In re Taylor, 407 B.R. 618 (Bankr. E.D. Pa. 2009). Check eFiled documents thoroughly. eFiling requires just as much attention to detail as paper filing. In this case, the attorney failed to observe her duty to make reasonable inquiry of the two documents she signed.
Attention must be paid to who is being served the documents and that appropriate parties, attorneys and sometimes even judges are served.
Often with eFiling systems, the fees are calculated by the system and correspond to the type of document being filed. Always confirm that the fees being charged are correct. In Disciplinary Counsel v. Character, 129 Ohio St. 3d 60, 2011 Ohio 2902 (2011) the attorney failed to pay the proper fees and tried to claim inexperience and credit card payment processing issues. If an eFiling system or vendor offers upfront payment of filing fees and monthly billing, it is strongly advised that it be used. That way, the filer avoids making sure the credit card is entered correctly every time and is in good standing. It is much safer to settle with a vendor later than have the case dismissed by the court.
Following the rules is always good advice, and holding attorneys and firm to the highest standards is even better advice. However, when the rules involve technology, and, in particular eFiling, this advice can sometimes be forgotten. Firms can use these best practices as a guide for practicing due diligence when it comes to the Rules of Professional Conduct and technology as Illinois implements eFiling statewide.
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