In The Era of E's

Forgive me for revisiting the topic of ethics so soon, but as I was joining the conversation on my post entitled "Swimming in the Gray," I stumbled upon a particularly contemporary problem in ethics and the legal profession. It was the issue of the electronic signature. My question was this: How important is it that the attorney is the individual who places the /s/John Hancock on a document before it is e-filed? Until this week, I had not really thought about it. Usually, when we e-file documents at my firm, they are of the nature that require at least two drafts... mine first, and the Boss's various tweaks for the final product. If he is reviewing the document and has made all the changes, he will usually go ahead and file it himself. No problem there.

But today, I was given directions to e-file a Notice of Discovery, which, as many of you know, is a notice to the Court that you are serving the other side with a set of Interrogatories and/or other delicous requests, which makes it much easier to ask the court to compel the other side when (usually if) they fail to respond in a timely fashion. The Notice of Discovery is a very basic form document. Ours contains two sentences. The only things that ever change are the heading and which party is serving which party. Yet, being a document that is filed with the Court, it requires a signature.

As I drafted it, I eventually ended up at the signature. Since I knew we would be e-filing it, I simply filled in the signature line: /s/ The Boss . Then I stopped. I thought back to my previous post about filing documents and some of the comments to that post. I thought about my own comment regarding this very issue. And I erased the signature.

If it is extremely important that an attorney and only an attorney sign the document that is being filed with the Court when he is hand-signing, shouldn't it be equally as important that an attorney and only an attorney e-sign the document when e-filing it? The ABA ethics guidelines did not anticipate this little problem when they were first created.

I imagine a paralegal drafting a simple form document for e-filing, printing it out or email it to the attorney for review, the attorney going in and placing his or her e-signature on the document then e-mailing it back for the paralegal to e-file. If it is a simple form, and the only things changing are the names, hasn't the attorney already approved it by creating it? And if he or she is authorizing the paralegal or secretary or whomever to place his or her name on it electronically and to use his or her attorney password to log onto the e-file sytem in order to file the form document, then how much more approval of said document can you get?

I understand and agree that if an attorney asks his assistant to e-file a complaint and many other types of documents without his review, this would probably consitute assisting an unlicensed person in the unauthorized practice of law. But in the era of e-filing, I personally find that the most dangerous part of this situation is the lack of review. I don't think there is anything inherently dangerous going on when the attorney has already reviewed the document and asks the paralegal to e-sign it and e-file it. Then again, I also don't think there is anything dangerous going on if the paralegal saves the lawyer some effort and a few seconds by typing in the /s/John Hancock before the review. The important part, it seems to me, is the review and authorization of the material being filed.

The holding that paralegals cannot sign attorneys' names, and that attorneys should not authorize paralegals to sign their names on court documents, is apparently long standing but not expressly stated in the ABA Model Guidelines for the Utilization of Paralegal Services. Still, like all rules and descriptions regarding paralegals, the rules are vague enough to allow evolving interpretation with the times. For instance, in North Carolina, the State Bar decided that completely and absolutely barring paralegals from signing for attorneys was overkill, especially in emergency situations, and that therefore, in emergencies, paralegals can sign their attorney's name to a document as long as they indicate that it was signed on the lawyer's behalf, and as long as all the other rules have been followed. While this decision seems to clash with the long-held rule that lawyers and only lawyers can sign their names to legal documents in the representation of clients, it is a reasonable exception AND it does not actually appear to violate or contradict any expressly stated law or guideline, depending on one's interpretation of said guidelines.

The introduction of technology into the legal world has altered and will keep altering this world. In my jurisdiction, some initial pleadings, when e-filed, do not even require an attorney's signature, digital or otherwise (ie, small claims, unlawful detainers). These claims are made via the alafile website by filling in digital blanks. You do not even get a print-out of the fully drafted claim. My state, it seems, does not quite worry about who places whose name where, or if the document is even signed at all. Perhaps the "signature" that matters is the use of the password to log onto the system.

As for me, I was stalled for quite some time today until I could ask the Boss whether I was silly for hesitating, correct for hesitating, or perhaps a little of both. I will leave you, reader, to decide how that conversation went down.