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As court records go electronic, lawyers are being required to assume a whole new set of responsibilities – the latest of which is a 6th Circuit decision requiring them to monitor the electronic docket.

In a recent decision, the court ruled that plaintiffs in a legal malpractice case were not entitled to re-open the time period for appeal from an adverse order because their counsel opted not to register his e-mail address with the court’s electronic filing system and then failed to monitor the electronic docket.

The court’s decision in Kuhn v. Sulzer Orthopedics creates a split among the circuits, with the 2nd and 9th Circuits not finding such a duty, according to the plaintiffs’ lawyer, Andrew M. Greenwell, a partner at Harris & Greenwell in Corpus Christi, Texas.

But Thomas Kilbane of Cleveland, Ohio, who represented the defendants, distinguished this decision from prior case law because those cases were decided before the age of electronic dockets.

The ruling “doesn’t seem like a large additional duty,” said Kilbane, a partner at Squire, Sanders & Dempsey, especially given that the court allowed attorneys to register their e-mail addresses and receive case updates.

He noted that lawyers had a duty to monitor dockets even before the electronic age, when it required more effort to physically visit the courthouse.

John Steele, who teaches ethics at the University of California Berkley’s Boalt Hall School of Law, predicted that the decision will be the first of many recognizing lawyers’ electronic duties.

“This is yet another aspect of the standard of care incorporating the use of the Internet on a routine basis,” he said. “Given the increasingly electronic nature of the legal system, I would expect more decisions like this in more contexts.”

Info ‘at their fingertips’

A woman retained her own counsel during class action litigation against the maker of orthopedic hip implants. He advised her to join the class action settlement, and she received $320,000. Because of her extraordinary injuries, she was also entitled to receive an additional $800,000, but her lawyer failed to file her claim on time and she did not get the extra money.

She then sued her former lawyer for malpractice. However, her new lawyer didn’t register his e-mail address with the court system and failed to monitor the electronic docket, missing the deadline for filing an appeal of a discovery order. The plaintiff then sought to re-open the appeal under Federal Rule of Appellate Procedure 4(a)(6), arguing that her attorney did not receive notice of the entry of the final written order.

But the court rejected her argument.

“An interpretation of Rule 4(a)(6) that allowed parties to ignore entirely the electronic information at their fingertips would severely undermine the benefits for both courts and litigants fostered by the CM/ECF system, including ease and speed of access to all the filings in a case. In addition, such an interpretation would defy common sense: It might be one thing to penalize a party who did not learn about the issuance of an appealable order in the bygone days of hiring “runners’ to physically go to the courthouse to check the docket,’ but here all [the attorney] had to do was register his e-mail address with the district court’s CM/ECF system to receive the court’s orders. …

“Failing that, [he] simply had to scan periodically the electronic docket for recent activity. Indeed, the unreasonableness of [the lawyer's] conduct here is evidence in that ultimately, he learned about the district court’s [order] in precisely this way: his paralegal checked the online docket and discovered the order,” the court said.

Going electronic

As courts across the country increase their use of electronic filing systems, lawyers must adapt their practice.

“We’ve had some opinions incorporating online legal activities into the standard of care requiring that lawyers perform simple factual research on the Internet, for example,” Steele said. “The notion that an attorney must check [an electronic docket] makes sense as more and more courts are turning to electronic filing.”

And some electronic court systems are set up so that attorneys can register their e-mail address and receive updates by e-mail (like the U.S. District Court in this case), meaning they don’t even have to affirmatively check the electronic docket, Kilbane noted. “I get rulings every day.”

Attorneys may receive more guidance on the issue – Greenwell said that he plans to appeal the decision anºd file a petition for certiorari with the U.S. Supreme Court.

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com

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