SC Lawyer, September 2007, #2. Think Before You Click: Ethical Implications of E-Filing.

• Author: By the Hon. John E. Waites and Sarah Lytle Kistler

South Carolina Lawyer

2007.

SC Lawyer, September 2007, #2.

Think Before You Click: Ethical Implications of E-Filing

South Carolina LawyerSeptember 2007Think Before You Click: Ethical Implications of E-FilingBy the Hon. John E. Waites and Sarah Lytle KistlerLate one afternoon, a potential client calls you and says her house is scheduled to be sold at a foreclosure sale the very next day and that she wants to save her home. You discuss her options with her and she decides that she wants to file bankruptcy. She gives you as much information as possible over the phone and agrees to come into your office to sign the necessary paperwork the next morning. Overnight, a storm hits part of South Carolina, knocking out power and telephone service in many areas and impairing safe travel. Your client calls the next morning and leaves a message that she cannot make it to the office but she does not want to lose her home. You try to call her back but you are unable to reach her. You call the court and determine that the foreclosure sale is going forward. Do you electronically file a petition on her behalf without obtaining her original signature?

A similar scenario was presented to an attorney in Virginia. In In re Wenk, the Bankruptcy Court for the Eastern District of Virginia found that an attorney who electronically filed a chapter 13 petition including the debtor's electronic signature when the debtor had not signed an original paper petition engaged in sanctionable conduct. 296 B.R. 719 (Bankr. E.D.Va. 2002). A snowstorm prevented the attorney's client from making her appointment to sign the petition, so the attorney instructed his paralegal to file the petition from her home without obtaining the client's signature. The debtor, unable to reach the attorney, contacted another attorney who filed a petition on her behalf with her signature an hour after the first petition was filed.

Having received two petitions filed on the same day by the same debtor but by different attorneys, the bankruptcy court issued a show cause order requiring the two attorneys to appear before the court and show cause why the cases should not be dismissed. The first attorney argued that the circumstances justified his filing of the petition without the debtor's signature. The court held that an attorney who files an electronic petition represents to the court that the attorney has secured an originally executed petition physically signed by the debtor before filing the case electronically. The court found that presenting a document that falsely stated that the debtor had signed it, under penalty of perjury, amounted to fraud. The attorney violated Federal Rule of Bankruptcy Procedure 9011 because "there could not have been a belief that the filing with what amounts to a forged debtor's signature . . . was proper or warranted under existing law or a good faith argument to extend the law." Wenk, 296 B.R. at 728. The attorney improperly took advantage of one of the many benefits of the Case Management/Electronic Court Filing (CM/ECF) system - the ability to file electronic signatures in lieu of original signatures.

The federal court's implementation of the CM/ECF system has dramatically affected federal practice in South Carolina. Gone are the days of the last minute race to the courthouse to file a critical motion before the courthouse closes at 5 p.m. CM/ECF...