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E-sign on the Dotted Line

 

I love e-filing and service. As a lawyer with a paperless office, I love not having to print documents. As a lawyer without administrative staff, I love not having copy and serve documents. Cover letters, affidavits of service, and un-stapling and scanning documents received from other parties have become the exception rather than the rule. All that non-billable admin time has been drastically reduced.

From what I can tell, most lawyers love e-filing as well (albeit perhaps with less passion than I have). But as I have watched lawyers cross this digital threshold, I have become concerned about what many have left behind: no one seems to actually sign documents anymore. The days of a signature confirming, if not attesting, that a a lawyer stands behind the work product appear to be gone. Instead, most filed documents, from letters to pleadings to affidavits, are marked with a simple “/s/.” Back when I had hair, a document bearing an /s/ indicated that it was a copy of an original document that had an ink signature on it. Now, of course, “ink” is something that adorns your flesh.

The Minnesota Rules of Civil Procedure appear to permit this practice. Rule 11.01 states that every “pleading, written motion, and other similar document” must be signed by an attorney or party but “The filing or submitting of a document using an E-Filing System established by rule of court constitutes certification of compliance with the signature requirements of the applicable court rules.” The filing will be rejected if the signature block is blank (which I have learned from experience) but a simple /s/ passes the test. The rule doesn’t say anything about clients and third parties signing affidavits. More on that in a minute.

As I look over lawyers’ filings, I see a lot of sloppy practices. For starters, most lawyers do not e-file documents themselves – their non-lawyer assistants do it. Oftentimes it is the assistant, not the lawyer, that types the /s/ in the signature block in the Word document, converts it to PDF, and then files it. Hopefully, there is some written instruction, such as an e-mail, authorizing the staff member to “sign” and file the document, rather than just an oral instruction. Whereas in the past it would have been improper for a non-lawyer to sign a lawyer’s name to a pleading, now it is routine. There is no longer any certainty that a lawyer was the last person to review and edit a document before it was filed.

Remarkably, the same process seems to be employed for affidavits. Before, When affidavits had to be notarized, the affiant needed to ink the signature while a notary looked on. Now that Minn. Stat. §358.116 permits affidavits to be signed under penalty of perjury without a notary, the same laxity in using /s/ in place of a signature has migrated. to affidavits. Diligent lawyers obtain e-mail confirmation from a witness before /s/igning and filing an affidavit but it sends a chill through my ethics DNA. I have had two OLPR investigations in the past year in which either a witness later denied approving an affidavit for filing that was /s/igned by the lawyer or the accuracy of an affidavit was challenged later.

To avoid second-guessing and ethics complaints, lawyers should up their game when it comes to e-signing and filing documents. There are many solutions, all based on the basic principle, which I first heard a dozen years ago from Sam Glover, the founder and editor-in-chief of Lawyerist.com, that a Word document is not a final document. A PDF is a final document.

  1. Sign and scan. This is the simplest: print the signature page, sign it, scan the page, and append it to the PDF. It is your unique signature and you and the world know that you reviewed and signed off on that document. No, you cannot pre-sign the signature page before the document is done.
  2. Create a font with your signature. A very simple digital solution that avoids printing and scanning is to create a font with your signature in it at www.fontifier.com. You create and upload your own handwriting, then download the completed font to your computer. The font only works on computers to which it has been downloaded. You can insert your unique signature into a Word document and save it as a PDF. Anyone else who gets the Word document cannot see or copy your signature and it cannot be copied easily from the PDF. Cost: $9.
  3. Certified Signature. The latest versions of Adobe Acrobat allow you to “certify” documents, with or without a visible signature (you can import a signature to Acrobat by scanning a page with your signature on it and uploading the image). This is the gold standard. Ordinary PDFs can be edited (you knew that, right?). Once a PDF is certified, however, it cannot be altered without losing the signature. This is what district court judges use to sign orders. State district and appellate courts and the federal court have all accepted my certified signed documents.
  4. E-Sign Apps. For witnesses signing affidavits, you could have them print, sign, and scan their signatures, or even print, sign, and take a picture of the page with their phones. Even more cumbersome for them than it is for you. E-sign apps allow a designated signatory to sign on their computer or phone. The app creates a log of when the document was signed; some include the IP address of the computer that was used to sign. Adobe Sign locks the document upon signing, just like the Acrobat certification function. Some other apps I have tried allow for remote signing but the resulting PDF can still be edited, which seems to me to defeat the purpose. Adobe Sign is included in the Acrobat DC subscription product; Adobe also sells it as a stand-alone product.

With technology, we can have the best of both worlds: e-filing and signatures that really mean something.

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Eric T. Cooperstein, the “Ethics Maven,” defends lawyers and judges against ethics complaints, provides lawyers with advice and expert opinions, and represents lawyers in fee disputes and law firm break-ups.
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