Failure to Check Spam Folder Leads to Missed Deadline

Court notices delivered via email are a known point of vulnerability for law firms: failure to timely check messages, accidental deletion of court notices, or haphazard review of spam folders.

Now The Researching Paralegal reports on the latest variation of this theme.

A trial court clerk in Florida served an order by email awarding a significant amount of attorney fees to the prevailing party (appellee).  The opponent/appellant claimed it did not receive the order, resulting in its failure to file an appeal.  What happened? The opponent/appellant’s email system automatically deleted the court’s email as spam.

The opponent/appellant asked the court to vacate the original order on the grounds of excusable neglect.  The trial court declined and Florida’s First District Court of Appeal affirmed. The Researching Paralegal cites these factors:

First, the review of the court clerk’s email logs confirmed that the email with the court’s order was served and received by the law firm’s server. Second, the law firm’s email configuration made it impossible to determine whether the firm’s server received the email. Third, the law firm’s former IT specialist’s advice against this configuration flaw was deliberately rejected by the law firm because its alternative cost more money.

The trial court concluded the law firm made a conscious decision to use a defective email configuration merely to save money, which was not “excusable neglect.”

Another nail in the coffin was testimony by the appellee’s attorney. His firm assigned a paralegal to check the court’s website every three weeks to safeguard that his firm would not miss any orders or deadlines.  The court held that the appellant had a duty to check the court’s electronic docket.

Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLCCase No. 1D15-5714, Fla: Dist. Court of Appeals, 1st Dist (2017).

What can we learn from Emerald Coast?

  1. Whitelist important email. Set your spam or junk email filters to allow receipt of messages from approved senders or domains. Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose email you don’t want to miss.
  2. Review spam quarantine summaries daily. Aggressive spam filters will occasionally block senders and domains you have added to your whitelist if the filter finds content in the email to be possible spam.  Addresses and domains may also change, causing new notices to be marked as spam.
  3. Don’t forget to look at your junk mail folder, another place where legitimate messages can land.
  4. Check online court dockets. Weekly will work for most firms; others may need to login daily, depending on case volume.
  5. Listen to your IT staff.  Here, the IT specialist argued against automatic deletion of junk and spam messages and recommended hiring a third-party vendor to handle spam filtering.  He also suggested investing in an online backup system, another idea rejected by the law firm.  Following either of these recommendations may have prevented the firm from missing the deadline.

A few more takeaways

  • It should be clear, but just in case:  everyone needs a backup system. If you can’t afford the cost of an online subscription, buy an external hard drive on sale and use the backup utility built into your operating system.  For backup protocols and additional backup options, see How to Backup Your Computer from the Professional Liability Fund (Practice Management > Forms > Technology).
  • Can’t afford a third-party vendor for spam filtering or another IT task?  Understandable, but the work itself still needs to get done. This may mean you, your partner, or your staff.  Technology is a tool, not a substitute for human judgment.

There are some other interesting twists and turns in Emerald Coast.  For examplethe law firm also refused to join in on a motion for a case management conference – a step that would have likely revealed the existence of the attorney fee award.  Additionally, automatic deletion of spam wasn’t the only email configuration procedure that caused problems for this office.  If you have a few moments, read the full opinion here.

Beverly Michaelis – All Rights Reserved 2017

Avoiding eCourt – Waivers and eFiling “Lawyer Buddies”

Oregon eCourt is nothing less than revolutionary.  It is transforming how we file pleadings, meet deadlines, pay filing fees, and access court documents.  For those who were hoping to retire or transition to another career before eCourt became mandatory, the change is especially rough.

Initially, eCourt requires an investment – buying a scanner and purchasing software.  It also demands that lawyers learn new technology and adapt to changing court rules and practices.

If you are on the cusp of making a transition away from the private practice of law, but fall within the boundaries of mandatory eCourt, you may want to delegate this task – or find an eFiling lawyer buddy.  Before you do, consider the following:

Is it ethically permissible to delegate eFiling?

Short answer: Yes, qualified.  (Read the remainder of this post.)

Whether you use an eFiling lawyer buddy (contract lawyer who tends to the eFiling responsibilities of the case) or a non-lawyer staff person, you have the right to give others access to your eFiling account.

On November 19, 2014, I co-presented the OSB-PLF CLE, Oregon eCourt Update, with Daniel Parr from the Oregon Judicial Department (OJD).  At that CLE, the following questions were posed:

Q: Should an assistant be the Administrator and then the Attorney be under that same registration? Or should a legal assistant have a separate account?

A: In general this decision is up to you. Your group should register as a firm or as a unit on the system, even if you are a solo practitioner. You can choose who to assign as a firm administrator, and this can be multiple individuals. Some firms have chosen to have staff log into attorney accounts, and other firms have chosen to have the staff set up accounts directly.

Q: Are there any ethical issues with having non-attorney staff handle filings?

A: Staff are permitted to assist with this process, and non-attorney staff are already eFiling on behalf of attorneys. Obviously it is up to the attorney to review and supervise any work done by non-attorneys, and the attorney is responsible for the result.

While we did not explicitly receive a question about using a contract lawyer to handle eFilings, the result is the same – contract lawyers (eFiling lawyer buddies) are permitted to eFile on behalf of the attorney of record.  As attorney of record, it is up to you to supervise your eFiling lawyer buddy, and you are responsible for the result.  There are some other considerations, discussed below.

Is it possible to avoid eFiling entirely?

Short answer:  Yes, upon “good cause” shown, with the court’s permission.  Any lawyer can apply for a waiver of the eFiling requirement.  The waiver may apply to an existing (singular) case (UTCR 21.140(3)(a)(ii)) or all cases in a given judicial district for a specific period of time. (UTCR 21.140(3)(a)(i)).  Lawyers seek a waiver for an existing case by filing a motion; for all cases in a specific judicial district by filing a petition.

If the court grants a petition waiving the eFiling requirement in a specific judicial district, “the person obtaining the waiver must file a copy of the court’s order in each case subject to the waiver; and include the words “Exempt from eFiling per Waiver Granted [DATE]” in the caption of all documents conventionally filed during the duration of the waiver.” (UTCR 21.140(3)(d) and (e)).

Using an eFiling lawyer buddy (contract lawyer)

If you decide to use a contract lawyer to eFile your cases, follow these guidelines:

  • Put it in writing.  As with all contract lawyering arrangements, document in writing the scope of the agreement, method of compensation, and other details.  For assistance with establishing contract lawyering relationships, see the checklist and documents available from the Professional Liability Fund (PLF).  On the PLF website, select Practice Management > Forms > Contract Lawyering.
  • Assess PLF coverage implications.  If the eFiling lawyer buddy is claiming an exemption from PLF coverage, he or she cannot operate independently and “take over” eFiling responsibility.  Contract lawyers who are exempt from coverage must function under PLF guidelines.  (For details, visit the PLF website.  Select Assessments & Exemptions > Exemptions, then “Law Clerk/Supervised Attorney Not Engaged in the Private Practice of Law.”)
    Your eFiling lawyer buddy is likely to be safe if she restricts her role to that of an assistant or secretary: uploading documents at the attorney of record’s direction, following the attorney of record’s instructions in selecting a filing code, etc.  The more independent your eFiling lawyer buddy becomes, the more likely she could be viewed as acting beyond the scope of the PLF contract lawyering exemption (if in effect).  The simple workaround: your eFiling lawyer buddy (aka contract lawyer) can obtain PLF coverage for more freedom in executing her duties.
  • Understand the acceptance/rejection process. As you define the scope of the eFiling lawyer buddy’s responsibilities, consider who will be responsible for processing and responding to acceptance and rejection notices issued by Tylerhost.net.  (Oregon’s eCourt vendor.)  For example, if the attorney of record eFiles a complaint on the day the statute runs and her filing is rejected, who will refile and seek relation-back?
    It stands to reason that each time an eFiling lawyer buddy files a document for the attorney of record, she needs to be engaged and available to assist with the filing until an acceptance or rejection notice is issued. This can take up to a week.  Specific terms should be added to the written contract lawyering agreement that address the eFiling lawyer buddy’s responsibility in rejection situations.  (Note: the attorney of record can instruct her eFiling lawyer buddy to add himself as a contact in order to receive acceptance/rejection notices generated by Tylerhost.net.)
  • Understand the court notice process.  Some lawyers who are tempted to hire an eFiling lawyer buddy might be operating under the misapprehension that they can completely avoid all associated technology.  However, court notices from the Oregon Judicial Department are sent only to the “filer,” in this case, the attorney of record.  The attorney of record is responsible for reviewing and acting upon court email on a timely basis.
  • Limit account access.  By necessity, an eFiling lawyer buddy will need access to the attorney of record’s eFiling account (Odyssey) operated by Tylerhost/Tyler Technologies. But this access can (and should be) limited in writing.  The eFiling lawyer buddy should only use the attorney of record’s eFiling account as needed, and at the express direction of the attorney of record.
  • Limit credit card access.  Ideally, the attorney of record will create the eFiling (Odyssey) account and enter the credit card information needed for payment of filing fees.  If the attorney of record needs assistance, she can call the Tyler Technologies support number and/or use the “GoToAssist” feature, allowing Tyler Technologies to take control of her computer to establish the account. This limits the eFiling lawyer buddy’s access to the attorney of record’s credit card account information.  Once the credit card information is entered, the eFiling lawyer buddy simply selects the payment account to pay filing fees.  If the eFiling account is configured properly, the eFiling lawyer buddy will not be able to see the credit card information.  The attorney of record should be the “administrator.”  The eFiling lawyer buddy should be a “user.”  Support staff at Tyler Technologies can help attorneys of record set up accounts using these distinctions.
    To further protect herself, the attorney of record should dedicate a specific credit card to use in paying eFiling fees.  By establishing a credit card solely for this purpose, it will be very easy to spot whether there is any inappropriate activity on the account.  The only charges that should ever appear on attorney of record’s billing statement are filing fees payable to OJD.
  • Provide proper supervision.  Regardless of how duties are divided, the real responsibility here still falls on the attorney of record.  This scenario presumes that the eFiling lawyer buddy’s role is to act only as a technical specialist.  The attorney of record must be sure at all times that eFiling lawyer buddy is doing his job.  The eFiling lawyer buddy is not responsible for the content or accuracy of documents filed; nor is it eFiling lawyer buddy’s responsibility to monitor filing deadlines.
  • Be aware of ethics traps in determining compensation. The attorney of record can cover the cost of using the eFiling lawyer buddy out of his own pocket as a cost of doing business.  If the attorney of record intends to bill clients for eFiling lawyer buddy’s services, the clients must consent.  The attorney of record should update his client fee agreements accordingly.  (Beware the limitations of modifying a fee agreement midstream – see OSB Formal Opinion 2005-97.)
    Alternatively, the attorney of record could also barter services in exchange, but should check in with OSB General Counsel about the ethics of such an arrangement.
    If the attorney of record plans to split her fees with the eFiling lawyer buddy, she must comply with the Oregon RPCs requiring disclosure and consent of the fee split to the client.

[All Rights Reserved – 2015 – Beverly Michaelis]

Legal Malpractice Claim Trends in Oregon

Number of Legal Malpractice Claims in Oregon 2003 to 2012Average Cost of Legal Malpractice Claims in Oregon 2003 to 2012

Disposition and Expense of Oregon Legal Malpractice Claims [Infographic]

Disposition of Oregon Legal Malpractice Claims 2003 to 2012 Legal Malpractice Claims in Oregon Expense  vs Indemnity PaymentsLegal Malpractice Claims in Oregon Expense  vs Indemnity Payments