It is every litigator’s nightmare.  You’re racing the clock to submit a court filing late at night on the due date.  You finally pull all your documents together and log onto the court’s electronic filing system.  But something goes wrong.  Perhaps the internet is lagging and you keep getting disconnected.  Perhaps, in the rush, pdf files aren’t labeled properly resulting in confusion.  You have to keep opening and closing pdfs to make sure you are filing the correct document (or perhaps even more critically, you are not inadvertently filing the wrong document).  Inevitably, you are confronted with a confusing series of boxes and drop-down menus that you have to navigate before you can file your papers.  The process goes on and on while you fumble through what feels like an endless series of screens, while the digital display on your computer clock ticks inexorably toward midnight.  In the best case scenario, hands sweaty and heart pounding, you manage to hit “submit” on your papers before 11:59 and receive confirmation of timely filing.  You breathe a sigh of relief.  You have narrowly averted disaster and you silently swear never again to leave things to the last minute . . . . . Until the next time.

Perhaps you are one of those rare and admirable litigators who always complete their papers well in advance of the deadline and, thus, never face this unnerving scenario.  Or perhaps you work at a law firm where electronic filing is handled by competent and experienced managing clerks or paralegals (full disclosure: I work at one of those firms and cannot overstate the value of such competent and experienced staff).  But, even those of us who are so fortunate can almost certainly empathize with the tribulations of Steven Call, a Utah attorney, who “barely missed the deadline” to file a $237,683.01 complaint on behalf of his banking client against a bankruptcy debtor.  The complaint was filed at 12:16 a.m. on April 23, sixteen minutes after the April 22 deadline.  Although the bank and Mr. Call begged the court for leniency, arguing that the filing was delayed by technical problems with the court’s electronic case file (ECF) system, the court determined otherwise.  Based on evidence adduced at a hearing, the court concluded that the ECF system was working correctly, but that Mr. Call made multiple avoidable errors when attempting to file the complaint, which “caused the delays.”  For example, Mr. Call repeatedly entered non-conforming characters (such as dollar signs and commas) into a box that accepted only “integers,” which prevented him from proceeding to the next step in the filing process.  He also misunderstood online prompts notifying him of the amount of the filing fee, erroneously believing that he was required to pay the fee before filing the complaint.  This error resulted in him wasting valuable time toggling back and forth through the ECF screens trying to locate a payment screen that did not exist.  The fee is only paid after the complaint is filed.  All of this led the bankruptcy court to dismiss the complaint as untimely, a decision that the 10th Circuit affirmed.  

As an ethics lawyer, I do not often see the duty of technological competence exhibited in such stark relief.  Comment 8 to Rule 1.1 of the ABA Rules of Professional Conduct (the “RPCs”) states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added).

Even putting aside the Comment, the duty of technological competence is arguably implicit in RPC 1.1, which requires lawyers to provide competent representation to clients.  All U.S. jurisdictions have adopted some form of RPC 1.1, even if they have not expressly adopted Comment 8.  Utah (where Mr. Call is licensed) has adopted Comment 8; so has New York and many other jurisdictions.   

If the duty of competence means anything, it surely means that a lawyer who uses the court’s ECF system must have “the requisite knowledge and skill” to do so.  Alternatively, the lawyer must hire competent staff to handle such ministerial functions and take reasonable steps to ensure that they are trained properly and stay up-to-date on developments in the relevant technology.  Even if lawyers delegate such matters, they are responsible for taking reasonable steps to supervise nonlawyer staff members who perform such tasks.  See RPC 5.3 (Lawyer’s responsibility for the conduct of nonlawyers).

At this point, gentle reader, you are undoubtedly asking: why did Mr. Call wait until the last minute to file such an important document?  The opinion contains only a partial explanation.  The bank had 60 days after the first meeting of creditors to file its complaint against the debtor, which resulted in the April 22 deadline.  Evidently, Mr. Call took the debtor’s deposition on the afternoon of April 22, although the firm had already begun preparing the complaint.  Mr. Call resumed working on the complaint at 4:21 p.m. after completing the deposition and finished it by 11:36 p.m., after which he logged onto ECF. As a result of the errors discussed above, he did not complete the filing until 12:16 a.m.  The opinion does not explain why the deposition was not scheduled until the day the complaint was due or why Mr. Call felt it was necessary to delay filing the complaint until after conducting the deposition. Presumably, he believed that he needed the information from the deposition to formulate the allegations in the complaint.  However, that is a risky gambit and it might have been more prudent to file the complaint earlier and then amend as necessary based on information learned during the deposition.  (Not being a bankruptcy lawyer, I do not know if these options were available). 

Although the court did not emphasize the last-minute nature of the filing – focusing more on the technological issues – it did note that:

The normal hours during which the Utah Bankruptcy Court clerk’s office is open to the public are 8:00 a.m. to 4:30 p.m. each weekday. . . . Electronic filers might benefit from filing within this window because the court runs an ECF help desk that attorneys can call when the clerk’s office is open.  (Emphasis added).

Given that the complaint was dismissed due to attorney error, will the law firm be on the hook for legal malpractice?  Maybe yes; maybe no.  A legal malpractice plaintiff must establish that the law firm breached its duty of care and that the breach proximately caused the client ascertainable damages.  It is this latter element that is often hardest to prove in a legal malpractice case.  Even if the plaintiff establishes breach of the duty of care, it must also prove what is called “a case within a case.”  Put simply, the firm’s client must also show that it would have prevailed on its underlying claims “but for” the law firm’s mistake.  That is not an easy hurdle to clear, and many malpractice claims are dismissed at the pleading stage for failing adequately to allege causation.  But even if the law firm successfully defends a malpractice claim, that rarely compensates for the many negative consequences of making such an error, including an unhappy client, the potential cost of defending a malpractice claim, and reputational harm.

The transition to ECF filing has been enormously convenient and efficient for lawyers.  Many of us still remember the bad old days of having to rush to the courthouse to get our papers filed in person before 5:00 p.m.  Now lawyers can file from home in their bathrobes before turning in for the night.  But that luxury comes with its own risks and technology will often let us down at the worst possible moments.  An important (and somewhat obvious) take-away from this case is that lawyers should try not to leave important time-sensitive matters to the last minute.  They should also develop contingency and redundancy plans to accommodate for unforeseen technological breakdowns.  Waiting until the final stroke of midnight is highly risky, and unlike Cinderella, no prince will be there to rescue us if we leave our proverbial glass slipper behind in the form of an incomplete filing.