Avoiding Ethical Issues When Filing and Serving Documents

As published in The Recorder, November 3, 2014

by Alicia Queen, Attorney at Law, File & ServeXpress

Alicia Queen File & ServeXpress
Alicia Queen
File & ServeXpress

Traditionally, the legal profession is slow to adapt to technology changes. Over the past 10 years however, many members of our profession began to use technological advancements to help them practice law more efficiently and effectively.

The use of electronic filing (e-Filing) and electronic service (e-Service) is on the rise in California. In 2000, the legislature enacted CCP §1010.6, enabling trial courts throughout the state to adopt local rules providing for e-Filing and e-Service.

In response, a growing number of Superior Courts began to allow parties to file, serve, and exchange documents electronically. Since e-Filing and e-Service are relatively new, the law is still evolving. In addition to knowing the mechanics of e-Filing and e-Service, an attorney should know which California Rules of Professional Conduct are important when using these new technologies.

Rules California Attorneys Must Consider

Two Rules of Professional Conduct stand out: Rule 3-100 and Rule 3-110.

Rule 3-100 – A Client’s Confidential Information

Rule 3-100 requires attorneys to safeguard clients’ confidentiality, which is breached when they communicate information in an unsecure manner. Attorneys must protect client data by ensuring messages are transmitted via a secure connection, and that they reach only the intended recipients.

Since email isn’t always secure, enhancements, such as encryption, are required for the attorney’s current emailing system. If an attorney chooses another electronic delivery method, the attorney must act to ensure client information is kept confidential.

Documents and information are sometimes faxed, but this is risky. Fax machines are often located in open areas, increasing the chances that others will see confidential client information in violation of Rule 3-100.

An advanced e-Filing system, however, transmits and processes data via secure connections and servers. For added security, such systems also offer:

1. The option to seal/suppress cases or documents
2. Redaction capability
3. Support for in-camera filings
4. Confidential information protection

These features assure attorneys that electronic filing is as secure, if not more so, than the traditional paper-filing process, reducing the risk of violating Rule 3-100.

 

Rule 3-110 – Failing to Act Competently

Rule 3-110 requires attorneys to render legal services in a competent manner. The Rule further defines the term “competent” to mean “1) diligence 2) learning and skill, and 3) mental, emotional and physical ability reasonably necessary for the performance of such service.”

Therefore, attorneys should be acquainted with applicable e-Filing and e-Service rules. A competent attorney should be concerned about missing a filing or service deadline by not being familiar with these rules.

For example, the California Code of Civil Procedure permits parties to add an additional five calendar days to the response due date when serving interrogatories by mail. Interrogatories served electronically, however, are allowed to add two additional court days to the response due date. A lack of awareness of this important difference could result in missed deadlines, placing an attorney at risk of violating Rule 3-110.

Rules California Attorneys Must Consider

In addition to comprehending the rules related to e-Filing and e-Service, attorneys should understand the features offered in the systems they choose. Failure to do so could result in costly errors.

For example, Rule 3.1110(f) of California Rules of Court requires parties to bookmark all exhibits that accompany electronically filed law and motion documents. A failure to comply will result in the clerk returning the documents to the filing party for correction. For an attorney submitting a paper filing, bookmarking exhibits is simple, but for the uninformed attorney bookmarking can be a challenge in cases where filing is done electronically.

While some e-Filing systems provide this bookmarking service, many don’t help attorneys understand how to use it. Attorneys must learn about this tool and other important tools. They also must ensure their staff members are trained in the use of e-Filing and e-Service.

Mandatory e-Filing and e-Service will soon be the norm in California Superior Courts. A careful consideration of Rules 3-100 and 3-110 will help attorneys make informed decisions about the role of e-Filing and e-Service in their practices.

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