Avoiding Malpractice in the Era of E-Filing
Online transactions are the way of the world, and e-filing for lawyers is no different. E-filing is becoming mandatory across state courts, federal district, appellate and bankruptcy courts, and administrative agencies. Although e-filing has been around for over a decade, oversights and errors continue to plague lawyers and their clients. The ability to file documents online has brought speed and convenience; it has also brought a new type of risk. In this article we present an overview of some of the common errors that attorneys make when using online court filing systems and provide a few tips to avoid committing legal malpractice in the era of e-filing.
What New Risks Did E-Filing Bring?
The overarching theme is that judges are not usually sympathetic to technical glitches. Like every other aspect of the legal profession, lawyers are responsible for expecting the unexpected, anticipating issues, and having Plan B, Plan C, and Plan D. With this in mind, here are a few of the additional concerns that lawyers must keep in mind when the are using e-filing systems.
Calculating deadlines is an important qualification for a litigator. Missing a deadline is a fast track to a malpractice suit, especially when it is one that jeopardizes the client’s ability to pursue the case. The advent of e-filing did not necessarily modify the rules of civil procedure to change the deadlines, but it does require the attorney to use some nuance to correctly calculate the new deadline.
One of the most common examples of timing issues related to e-filing stems from the fact that while clerks’ offices close in the evening, the Internet does not sleep. Another theme here: know your local rules. Your jurisdiction most likely has a rule about what time documents need to be e-filed, or, if it is still an option, conventionally filed. Know whether an e-filing after 5:00 PM will be untimely, or whether you have until midnight the same day. Note that some jurisdictions consider documents filed after the office’s closing to be filed the following day. This could make or break a statute of limitations, so be sure to check these rules before calculating out the filing date. A legal deadline calculator can help.
Underestimating Time and Work Involved
In the same vein, there have been numerous instances of attorneys or paralegals logging in at 11:55 PM to file a document due that night, and – surprise – not getting the final document uploaded by midnight. When working with an e-filing system, assume that everything that can go wrong will go wrong. There is a misconception that filing online will go more quickly than dropping the filing off at the courthouse. Unfortunately, this has led some online filers to be a bit more lax than usual about promptly preparing the documents.
First, legal documents take time to prepare well. Every attorney knows they must thoroughly review and proofread everything that gets filed with the court. This is time-consuming and should never be held to the last minute. More than that, however, the actual process of uploading and submitting can add precious time to the filing process. Know the process inside and out, whether it is a legal assistant, paralegal, or attorney who hits the “Submit” button, make sure that they have the needed login and password information at the ready, know the size limits of the filing software, and follow all of the steps necessary to get the document properly submitted. Assume that technical problems will always add more time, and buffer that filing time. In other words, avoid the last minute filings as much as humanly possible.
Rule 1.6 of the Model Rules of Professional Conduct states that attorneys cannot disclose information relating to the representation of a client without their consent.
Client confidentiality always needs to be a top concern, both from an ethical perspective and also to avoid a malpractice suit. Remember that everything that is e-filed becomes publicly available immediately. Remember to redact appropriately.
Under Federal Rule of Civil Procedure 5.2, “unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:
- the last four digits of the social-security number and taxpayer-identification number;
- the year of the individual’s birth;
- the minor’s initials; and
- the last four digits of the financial-account number.”
Remember that you may need to redact on the basis of privilege or protective order as well. Each court will have rules regarding proper electronic redaction. For example, an attorney using a word processer to redact a document can simply delete the confidential portion of the text and type REDACTED. For a paper document, prior to scanning the document to PDF, the attorney can black it out with a dark marker. Do not simply use a word processor’s highlight feature, or highlight or draw a black box over some part of a PDF, to mark the sensitive portion of the text in black. This is still searchable and will be ineffective at redacting the information. (Of course, MasterFile provides built-in redaction that permanently deletes and removes confidential information, lets you track, stamp and prepare privileged lists in a few clicks, and is quick and easy to use but – naturellement, we’re biased!)
Equally importantly, if not more importantly, make sure to upload the correct document. Be diligent with naming conventions and quadruple-check that you are uploading the right file (for the right client!) Not only can it severely hurt your client if you file the wrong document and miss a deadline, but it can also hurt other clients whose confidential information you inadvertently file during the course of representing another client.
Properly formatting documents is not new to the legal profession. Every court sets forth formatting requirements for documents – margins, spacing, font, size, word limits, paper size, even where staples go. So why would the format of an electronic document not be subject to the same scrutiny? Be sure to know the rules of the court you are filing in.
Federal e-filings, for example, are subject to strict formatting requirements. Below are just a few, among many others:
- Properly converted to PDF either through a word processing tool or by a Print to PDF function
- PDFs must be text-searchable and usually must be in PDF-A form
- Meet the district court’s size limit, which generally ranges from 5MB to 20 MB
- PDF’s must not contain security features like tracking tags or access restrictions
- Must meet district court’s signature requirements
- Must comply with rules regarding attachment of exhibits (e.g. can they be attached as separate documents or must they be combined into one PDF with the pleading or motion?)
Improperly formatted documents can be rejected from the system. If the formatting problem causes a missed deadline, do not fret yet. Courts will generally look back to the date of the original filing, and if you promptly corrected the formatting error, they will treat the filing as timely.
How Serious Is an E-Filing Mistake?
E-filing means efficiency, but it also means more opportunity for error. How much trouble can you get in as an attorney for an e-filing mistake?
The short answer is that you will get in as much trouble as if you made the same mistake with a paper filing. Generally, courts are trying to hold attorneys to the same standard they always have.
One thread that runs across many of the cases concerning e-filing mistakes is that judges do not want to hear that your mistake was caused by computer problems. Computer malfunctions are not a valid defense. Courts continue to assert the belief that they should have been expected. E-filing is not new, and courts tend to reject attorneys’ excuses.
A recent case out of the Fifth Circuit is a word of warning to attorneys who are still of the mindset that they do not need to be accountable for technology failures.
A plaintiff’s attorney out of New Orleans failed to respond to a summary judgment motion within 14 days because the e-notice got caught in his “other” folder, whereas all of the other e-notices about the case had been directed to his main inbox. This is a sympathetic problem, as these junk folders are often at the back of our mind as we handle hundreds of emails every day. Despite the seeming blamelessness of the attorney in this situation, the court did not grant the motion to set aside summary judgment. Drawing on precedent from previous Fifth Circuit cases, the judge stated that the attorney is responsible when their technology fails because they are in the best position to ensure it is working correctly. In a past Fifth Circuit case, Trevino v. City of Fort Worth, an attorney failed to respond to a motion to dismiss because the firm’s antivirus software was defective and caused court notices to go to spam.
The Trevino case and its successive cases tell us that courts are not going to find “excusable neglect” for purposes of Rule 60 relief when the attorney was simply careless.
Not Knowing the E-Filing Process
Absolutely do not try to raise this as a defense to a mistake. Judges expect attorneys to stay abreast of filing processes and educate themselves when they change. Historically, when attorneys blame a new process or a member of the support staff for a filing mistake, the court is quick to chide them. If a rule of civil procedure had been amended, you would be expected to conform to it as soon as it is effective, so the same is expected of the technology.
Forgetting to attach supporting documents, failing to learn the distinctions between federal and state filing practices, and failing to address known computer problems, such as a Windows system update that might take an hour or two to complete, effectively locking you out of your computer, have all been examples of times when a judge has addressed an attorney’s argument of excusable neglect.
One of the more surprising instances where courts have not extended leniency is when attorneys missed filing deadlines due to the court’s CM/ECF system being down. One would think that in this scenario, the court would offer a free pass for attorneys who could not file because of a failure of the court’s own technology. This is not so.
Practical Guidance from WestLaw suggests the following when a CM/ECF system is down:
To be prepared in the event of a CM/ECF system malfunction, and to avoid the accompanying stress and panic caused by the possibility of a missed filing deadline, counsel should:
- Know the rules and procedures for filing documents when the CM/ECF system is down, which may be found in the court’s:
- local rules;
- CM/ECF filing rules and procedures; and
- Be familiar with Federal Rule of Civil Procedure (FRCP) 6(a)(3), which governs the extension of filing deadlines when the clerk’s office is considered inaccessible.
- Keep the CM/ECF Help Desk telephone number handy.
In other words, do everything you can to get the document filed before it is too late. Taking a “not my fault” attitude is the last way to get the court’s sympathy for a filing mistake. It would better support your case to be able to list every step you took to meet the filing deadline, like calling the CM/ECF Help Desk to find an alternate way to file.
In conclusion, a few final thoughts as an introductory checklist to avoiding malpractice in the era of e-filing:
- Know the local rules and understand your court’s e-filing system.
- Calculate the deadlines properly for filing and service, including by what time of day the document must be filed.
- Have your firm’s CM/ECF login and password at the ready before filing.
- Do not underestimate the amount of time it takes to prepare an electronic filing.
- Adjust spam filter to e-notices do not get caught in junk.
- Know what format the documents must be in, and have someone tech-savvy on staff who can help you achieve these requirements.
- Confidentiality, confidentiality, confidentiality. Know how to redact and always ensure you are not uploading the wrong document.
Courts sometimes give leniency when the filing mistake is something that could have otherwise been corrected by a clerk on a paper filing. But when e-filing mistakes prejudice your client, like missing the statute of limitations or a response deadline, not only will the court be sure to embarrass you, but you may also face a malpractice suit.