eCourt Malpractice Traps and Relation Back

eCourt is available twenty-four hours a day, seven days a week. Convenient? Absolutely! But with convenience comes risk.

Tempted by the generous schedule, Clickhere_medFLT_490x250it is easy to form the habit of postponing filing until shortly before midnight on the day the filing is due.

While far from ideal, last-minute filing will succeed if your document is accepted. But therein lies the trap. Acceptance is not instantaneous. It may take one to three court days before the clerk processes your document. What happens if the statute of limitations expires during this time?

If you receive notice that your filing was rejected after the statute of limitations has run, your only hope is to request relation back. Beyond strict compliance with the rules – which lay out a detailed scheme for resubmitting your filing and seeking relation back – there are other nuances in play. Handling relation back correctly means your client’s case goes forward. Mishandling relation back may result in a legal malpractice claim.

To understand what is at stake, and the specific steps you need to take, let’s begin by reviewing the filing process:

When is a Filing Accepted?

As noted above, eCourt filings are not automatically accepted when submitted. Every filing is reviewed by a court clerk:

  • If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document, thereby indicating the date and time of filing of the document. UTCR 21.080(4).
  • If the court rejects a document submitted electronically for filing, the electronic filing system will send an email to the filer that explains why the court rejected the document, unless the filer has elected through system settings not to receive the email. The email will include a hyperlink to the document. UTCR 21.080(5).

Resubmitting a Rejected Filing

If you receive notice that your filing has been rejected after the statute or deadline is expired, follow UTCR 21.080(5)(a) to the letter. Correcting your original filing mistake and resubmitting your document is not enough to receive relation back.

To apply for relation-back to the original filing date, follow these steps:

  1. Diagnose and fix your filing error. The rejection notice issued by the electronic filing system will explain why the court rejected your document.
  2. Resubmit the document within 3 days of the date of rejection. If the third day following rejection is not a judicial day, then resubmit the filing the next judicial day. Resubmission means submission of the document through the electronic filing system or physical delivery of the document to the court. UTCR 21.080(5)(a).
  3. Include a cover letter with your resubmitted filing that contains the following information:
    1. the date of the original submission
    2. the date of the rejection
    3. an explanation of the reason you are requesting the date of filing to relate back to the original submission
    4. include the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” in the subject line of your cover letter. UTCR 21.080(5)(a)(i).
  4. If your resubmission is filed electronically the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” must also be included in the Filing Comments Field. UTCR 21.080(5)(a)(ii).

Mistakes Happen

If you apply for relation back and realize that you did not fully comply with UTCR 21.080(5)(a), what should you do? If you are within the three day window for resubmission, there is no harm in trying again. The rule does not limit filers to a single resubmission attempt.  Resubmit your filing a second time, with the proper cover letter and required information in the filing comments field. Be aware that getting relation back – even when you meet the technical requirements set forth in UTCR 21.080(5) – is within the court’s discretion and not guaranteed. While every effort is made to ensure uniform application of the rules, practices may vary from jurisdiction to jurisdiction. Furthermore, responding parties may object to a request for relation back within the time limits as provided by law for the type of document being filed. UTCR 21.080(5)(b).

These are important points for eFilers to grasp. Even if you fully and timely comply with UTCR 21.080(5), getting relation back is not an automatic right. Your best defense is to do it right the first time and follow the tips at the end of this article.

Technical Difficulties

There is one other basis for requesting relation back. If the eFiling system is temporarily unavailable or if an error in the transmission of the document or other technical problem prevents the eFiling system from receiving a document, the court may, upon satisfactory proof, permit relation back. UTCR 21.080(6).

A filer seeking relation back due to “technical difficulties” must follow the same steps as any other filer resubmitting a rejected filing. (See the steps described above in Resubmitting a Rejected Filing.) In addition, the filer is permitted to attach supporting exhibits that substantiate the system malfunction.

PRACTICE TIP:  Slightly different language is required in the cover letter and filing comments field if relation back is sought under UTCR 21.080(6): “RESUBMISSION OF REJECTED FILING, SUBMISSION UNSUCCESSFUL, RELATION-BACK DATE OF FILING REQUESTED.”

CAVEAT: Technical problems with the filer’s equipment or attempted transmission within the filer’s control will not generally excuse an untimely filing.
UTCR 21.080(6).

What If Relation Back is Denied?

If relation back is denied, contact the claims attorneys at the Professional Liability Fund.

Staying Out of Trouble

Avoid falling into the relation-back malpractice trap by following these tips:

[All Rights Reserved 2016 Beverly Michaelis]


Kicking the Can Down the Road: Procrastination

Why Do Today What You Can Put Off Until Tomorrow?

This was a sign proudly displayed in the office of a lawyer I visited some years ago.  At the time, the lawyer was married, moderately successful, and wore his procrastination as a badge of honor. Now he is divorced, the sign is gone, and so is he.

The Emotion and Psychology of Procrastination

Understanding and addressing procrastination is difficult.  One of the better procrastination31explanations of this behavior appeared in a post on The Productive Mindset in 2010. Here are the takeaways:

  • Procrastination is not a time-management problem, it is a self-regulation problem.
  • Procrastinators often have anxiety or doubts about their abilities, or about the perception others have of their abilities.
  • Many procrastinators would prefer others think they lack drive instead of providing the opportunity for others to question their capabilities.
  • Underlying fear of failure or fear of success is common among procrastinators.

Fear, Anxiety, and Doubt

While the original Mindset post is no longer available, Googling “the psychology and behaviors of procrastination” reinforces that fear, anxiety, and doubt are major players here.

Does This Sound Like You?

  1. Do you put off taking care of important things to the point of jeopardizing relationships, career, finances, or health?
  2. Do you put off doing what you need to do until a crisis develops?
  3. Do you put off doing tasks unless you can do them perfectly or until you can find the perfect time to do them?
  4. Do you hesitate taking necessary action because you fear change?
  5. Do you think about things you’d like to do but rarely get around to doing them?
  6. Do you believe that projects or tasks will somehow take care of themselves?
  7. Do you overcommit yourself?
  8. Do you tend to do only what you want to do instead of what you should do?
  9. Do you tend to do only what you think you should do instead of what you want to do?

Adapted from It’s About Time, by Dr. Linda Sapadin with Jack Maguire [Procrastination Self Test.]

Ending the Paralysis and Self Sabotage

We all procrastinate occasionally.  But if putting things off is affecting your practice, home life, health, or finances – don’t struggle alone.

The Oregon Attorney Assistance Program offers “Getting It Done” workshops that offer practical, individualized techniques to effectively address procrastination.  In addition to the workshop, Oregon lawyers are encouraged to contact an Attorney Counselor at any time for help with this issue.  The Oregon Attorney Assistance Program is free and confidential.

You can read more about the paralysis of procrastination here.

All Rights Reserved [2016] Beverly Michaelis

Mac Users! Save Client Email in Five Easy Steps

If you follow this blog or read my articles in the Oregon State Bar Bulletin, you know I’m a big proponent of capturing email as part of the client file.

Read on if you believe, as I do, that email communications should be stored with the rest of your client documents to ensure a fully integrated, complete record of your work.

I Know You Love Gmail

Many lawyers are ardent users of Gmail. If you believe in saving email to your client file, this poses a problem.  Google doesn’t provide a tool to let users save multiple messages in one step.  You can print one message at a time to PDF or paper, but that’s about it.


One workaround is to use Zapier, a web automation app.  [See my upcoming blog post on April 11.]

Outlook + Acrobat

Another approach [and my personal favorite] requires a combination of Outlook and Adobe Acrobat.  These two programs work together seamlessly, allowing the user to create searchable email portfolios that are automatically indexed and hyperlinked. When the Acrobat ribbon is installed in Outlook, you are only a few mouse clicks away from converting a single message, group of messages, or an entire folder of messages to PDF.  No need to worry about attachments, as these are automatically captured during the conversion process.  [Beware that Office 2016 requires an upgrade to Acrobat DC.]

What If Zapier, Outlook, or Acrobat Aren’t For You?

There are other options, but if you’re a Mac user, you’re in luck.  I can show you how to save client email in 5 simple steps without buying any new software.  All you need is the Mail App built into Mac OS.

Mac Users: Save Client Email in 5 Easy Steps

OK, I actually fibbed a bit.  First you need to set up your email account in Mail.  Macs are configured to help you automatically pull down email from Yahoo!, Gmail, and AOL, so this is very easy.  Your Web account stays intact.  All you’re doing is bringing your email messages into the Mail app.  Once you’ve set up Mail to pull messages down from your Web-based account, follow these five easy steps:

  1. Select the messages you wish to save [Use Command A to select all messages in a folder].
  2. Choose File, Save As.
  3. Verify the File Type is set to “RTF” [Rich Text Format].
  4. Verify that the box marked “Include Attachments” has a checkmark.
  5. Give the message string a name and save it to the desired location.

RTF [Rich Text Format] documents can be opened in Word, WordPerfect, Open Office, or any text utility [WordPad, NotePad].  This method will save your messages in a single thread which includes attachments.  The result is a searchable document that can be saved with all your other client documents.

Once the RTF file is created, you can delete the messages from Gmail, freeing up space.

Best Practices for Mac Users

IMHO, I would perform this maneuver as part of the file closing process.  Go ahead and leave messages in Gmail while your file is open.  When the work is complete, and your file is ready to close, make it part of your file closing ritual to “File, Save As” email messages to RTF.  Then delete the messages from Gmail.  This creates an integrated, complete client file.

Personally, I file as I go – an easy thing to do if you’re using Outlook+Acrobat, but I understand why lawyers prefer to leave emails in a folder while a file is open.  Many people find it easier to search email and use existing messages to send a new message. I get it.  My only caution:  If you do this, carefully review the original recipients of the message before you hit Reply All.  Clients, in particular, may have included someone else in an original email thread.  If you don’t notice this, and hit Reply All, you are sending confidential client communications to your client and someone else.

[All Rights Reserved Beverly Michaelis 2016]

[Note: no promises here that original attachment formatting will be preserved, but since most lawyers automatically save attachments as separate documents in the client file, I wouldn’t lose sleep over the fact that they aren’t perfect in appearance in your RTF email thread.]

Should You Barter Your Legal Services?

Bartering is “… A method of exchange by which goods or services are directly exchanged for other goods or services without using a medium of exchange, such as money.” [Wikipedia].

For a lawyer, bartering might consist of swapping services with someone like a Web designer. In exchange for setting up a business entity, you receive a new Website.

What are the Ethical Implications of Bartering?

When a lawyer accepts in-kind payment for legal services, whether the payment consists of the client providing services to the lawyer or an ownership interest in the client’s business, the lawyer is going beyond simply establishing a contract for legal services, and instead is doing business with a client. When entering into a business transaction with a client, lawyers must follow the requirements of RPC 1.8(a).  [Excerpted from Alternative Pricing Models: What’s in a Fee?]

This means:

  • The terms of the agreement must be reasonable and fair.
  • Your fee agreement must be in writing.
  • You must obtain the informed consent of your client to proceed (usually contained within the fee agreement).
  • You must recommend that the client consult with another attorney in deciding whether consent should be given.
  • You must fully disclose the details of the business transaction and each party’s role (part of informed consent).

Bartering and Professional Liability Exposure

Prior to 2016, Oregon lawyers were required to provide the Professional Liability Fund [PLF] with copies of business transaction disclosure letters or risk exclusion of coverage. The reporting requirement to the PLF has been removed for plan year 2016. Lawyers are no longer required to provide the PLF with copies of disclosure and consent letters when engaging in business transactions with clients.  As a courtesy, the PLF continues to offer a sample disclosure letter on its Website.

Beyond the Obvious Ethical Traps and Liability Exposure

Barter exchanges have practical implications.  Ask yourself:

  • If you do not complete the work for the client, how will you “refund” a portion of your “fee?”
  • Are you prepared to keep the proper records?
  • Do you understand the tax requirements for barter exchanges and the penalties for failure to report?

If you plan to barter with a client in exchange for legal services, be prepared:

  1. Read Alternative Pricing Models: What’s in a Fee? by Helen Hierschbiel.
  2. Obtain a copy of the sample disclosure letter on the PLF Website.
  3. Understand how your professional liability coverage works.  The PLF Primary and Excess Plans are available on the PLF Website.  Call the PLF with coverage questions: 530-639-6911 or 800-452-1639 (Toll-Free in Oregon.)
  4. If you’re still foggy on the ethics, contact Oregon State Bar General Counsel.
  5. If you need help with tax-related recordkeeping and reporting, speak with your accountant or a tax lawyer.
  6. Learn the ins and outs of bartering – if you are trading legal services for a new Website, verify that your potential client can do the job.  Check out these informative sites and posts: BarterQuest – when, where, and how to barter; How to Barter AnythingHow to Barter for Goods & Services – Tips and Methods to Trade; and Barter 101: Trading For Services.

Nothing prohibits bartering with a client for legal services, but like so many alternative fee approaches, be sure you know what you are doing before you enter into an agreement you might regret.

[All Rights Reserved 2016 Beverly Michaelis]


For more on the topic of engaging in business with clients, see Too Good to Be True: The Ethics of Business Transactions With Clients.

The Year in Review – Top Posts in 2015

Thank you loyal readers!  As 2015 comes to a close, here is a look back at the year’s top posts:

Working Effectively – Time Management, Staffing

File Management – What to Keep, What Not to Keep

Marketing, Business Development, and the Attorney-Client Relationship


Fees – Getting Paid, Finances, Credit Cards, Trust Accounting


Technology – Macs, TECHSHOW, Office 2016, Windows 10, Paperless, and More


[All Rights Reserved 2015 – Beverly Michaelis]