Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Be Wary, Electronic Signatures Are No Replacement for the Real Thing if the Declarant Has Not Seen It

In Valiavicharska v. Celaya (N.D. Cal. 2012) 2012 WL 1016138, an excessive use of police force action pending in the U.S. District Court for the Northern District of California, Plaintiff's counsel filed a declaration electronically signed by his plaintiff-client in opposition to a motion for summary judgment.  Plaintiff testified at trial during cross-examination that she had never actually seen the declaration.  In response to an OSC as to why plaintiff's counsel should not be sanctioned, the attorney said that, before filing the document, he had discussed the contents of the declaration with his client and had told her "what it was and what it was for" after which discussion the client, without reviewing the declaration, authorized him to sign her name electronically.  (2012 WL 1016138, *2.)

The District Court stated this did not comply with General Order § 10(B) of the Northern District requiring that an attorney filing a declaration on behalf of someone other than himself attest that "concurrence in the filing of the document has been obtained" from the signatory and requires the attorney to "maintain records to support this concurrence for subsequent production for the court if so ordered."   “A declarant cannot affirm under penalty of perjury that the contents of a document are true when she has not reviewed the document.  It therefore follows that an attorney cannot, on the declarant's behalf, make such a representation about a document when the attorney had not provided it to her for her review.”  (2012 WL 1016138, *2.)

Importantly, the order provided implicit warning to practitioners in all jurisdictions in responding to Plaintiff counsel’s argument that he should not be sanctioned because he was unaware of the General Order.   The District Court stated this argument "merely highlights his misunderstanding of his obligations as an attorney licensed to practice before the Northern District.  As an attorney admitted to practice in the Northern District, he is required to make himself familiar with the rules of the Court."  (Id. at *3.) 

In the Southern District of California, a party filing a document signed by a non-registered user of the Court's electronic filing system, such as a client, must scan and electronically file the original document.  "The filing party must retain the original document for a period of five years from the date the document is signed, or for one year after the expiration of all time periods for appeal, whichever period is greater, and must provide the original paper document to the Court upon request."  ((May 22, 2006) General Order 550 § 2(f)(2).)  The Administrative Procedures and Guidelines for Electronic Filing United States Bankruptcy Court Southern District of California allows for either an /s/ typed signature in place of where the signature would otherwise appear or a scanned image, but requires that the original, wet signature be maintained for 5 years.

It is therefore imperative that practitioners familiarize themselves with local rules particularly in light of the expanding use of electronic filing throughout the court system.

-- Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**