Didn’t someone wise say that the road to hell is paved with good intentions? So, my subject today is the need to have the client’s actual signature on each document filed with the court.
It should be obvious and go without saying. Yet the point apparently needs to be made. The observations of colleagues in the trenches suggest that newcomers and those seduced by the electronic ease of ECF filing are somehow skipping the step that includes having the debtor review and actually, physically sign the petition and schedules. Therein lies ruin: sanctions, suspension, and perhaps worse.
I’ve struggled with ways to make this point amusing, lively, or simply not pedantic. I’ve struck out. So, I’ll preach.
The statute, the rules, and the cases are clear that the debtor’s original signature is required on all documents filed with the court as signed by the debtor. The fact that ECF allows a /s on the signature line does not relieve counsel of having the original signature in the file.
Here’s what the local rules of the Northern District provide on the subject:
(c) The electronic filing of a document purportedly signed by someone other than the Registered Participant, including but not limited to the petition, statement of financial affairs, and schedules of assets and liabilities, shall be deemed a certification by the Registered Participant that he or she has the document in question, bearing the person’s original signature, in his or her physical possession. The Registered Participant must produce the original signed document on request by the Court and the Registered Participant shall retain the document bearing the original signature until five years after the case or adversary proceeding in which the document was filed is closed.
There’s a reason that the first substantive question asked of the debtor at the first meeting of creditors is “did you personally sign the originals of the petition and schedules in this case?” It’s the debtor’s financial life that’s at stake in the proceeding. The debtor bears the first order responsibility to verify the accuracy of the documents. Rule 1008. Why, as counsel, would you want it any other way?
If the point needs reinforcing, you could read Brown, 328 BR 556, or Daw, 2011 Bankr. Lexis 279.
No matter how pressed for time, or how inconvenient it may be to get the debtor’s signature, there is no ethical substitute. Unless you are tired of practicing bankruptcy law.
Here endeth the sermon.
Image courtesy of britanglishman.
I used to practice in another jurisdiction and witnessed an attorney getting ripped apart for not having the client’s signatures. There were other issues in his case, but that was the thing that lead to his dressing-down by the Trustee.
As a matter of normal office procedure, I go so far as to get the client’s initials on all pages of the petition, schedules and forms that do not require their signature while we review them together. That way, I know that I am always covered if the client states that they have not seen a particular item. This is an inherently necessary evil as I see it. A way to pay for the convenience of electronic filing and docketing. Additionally, most trustees that I am in front of will ask if the debtor has not only signed but also reviewed the documents that I filed for them. This helps them know that they have seen each page.
I think your practice is sound. It not only protects your backside, it impresses on the client the importance of their information and their review of your handling of the information. CLients who want to leave the entire matter to you frighten me.
The picture says it all. One attorney here in VA got screwed for filing without a signature to stop a foreclosure requested by the debtor. The court found out when the debtor filed with another attorney.
I have client sign the signature lines, initial any changes, and initial the list of creditors. I also print 2 to 1 double sided or 4 to 1 to save paper and space. The client gets copies by email or in print.
Your point is an incredibly good one, this is a huge problem each time it happens, and all the more tragic because it often happens to a lawyer acting out of compassion for a client. And yet. A rule that you never, ever, file with the court any document that the client hasn’t signed in ink in your presence is a bit too broad.
Before this issue arose in electronic filing, it came up for years in notarizing documents. The problem was a notary paragraph stating that the person signing was personally known to the notary, and signed the document in the presence of the notary, when one or both of these things were not true. The solution (if the notary wished to keep their commission) was to alter the language to reflect what actually happened. If, for example, the notary signed based upon recognizing a known signature, received in a sealed envelope, and verified by telephoning the signer, the notary block had to say (or be altered to say) all of that. A later person viewing the document could argue about whether the notarization was effective, but they couldn’t say that the document was misleading or deceptive.
The implementation of electronic filing takes this a step further by inserting implied language in every document. By typing “/s/ Client Name” a local implementation rule says you’ve actually typed some variation of “/s/ Client Name actually signed this document, and I have a copy in my file.” So if that didn’t happen and all you’ve typed is “/s/ Client Name,” you’ve misled everyone relying on the document about what happened. And that’s a very bad thing.
But you can override the presumption from the local rule by adding language that qualifies the signature. If, for example, you have a client with a physical disability who cannot sign the document by hand, you can affix “/s/ Client Name – signature was by means of a rubber stamp” or “/s/ Client Name – signature was by means of instructing a third party to sign the client’s name in her presence and at her direction.”
I think that the easiest and clearest way to do this is to type the language under or around the signature, but even attaching a separate page expressly saying what happened should work as well. If you do that, and you actually do all of the things you said you did in the language you added, you tend to impress the court with your honesty, rather than annoying the court with your deceit.
That said, I think that going through a petition and schedules with the client and having them sign as it is explained to them is by far the best practice, and I rarely do anything else. But the requirement is “be honest,” and the best practice just implements that requirement. As with all good habits, don’t break from it without good reason, and in this case, don’t break from it without explaining clearly what you did and why you did it.