Utah District Court
Kansas State Court Suspends Bankruptcy Lawyer for Not E-Filing
In the first known case of its type, a lawyer has been disciplined by a state
disciplinary authority in part for for failure to electronically file in federal court. The lawyer was generally neglectful of two clients' matters, and dishonest with them and with disciplinary authorities, but as to one client, e-filing was a central issued.
The attorney was requested to file a bankruptcy petition electronically before the 2005 change in law, and told the client he was an e-filer. Then , the attorney told the client he was not actually an e-filer but would obtain a login and password before the end of the week. The client terminated the attorney client relationship, and hired a lawyer who did e-file his petition. But the discipined attorney failed to refund the fee.
The court said that the lawyer's failure to e-file for clients (in violation of the Kansas Bankruptcy Court mandatory requirement to e-file) breached his duty to provide competent representation and to act with reasonable diligence and promptness in representing clients. The lawyer had previously been admonished by the bankrupcty court for attempting to file in paper. In re Harris
, No. 99,294, --- P.3d ----, 2008 WL 818993 (Kan. March 28, 2008).
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Failures to Receive E Notice - NOT Excusable
Two cases recently summarized by LexisNexis CourtLink considered different circumstances in which counsel failed to receive enotice, and also failed to obtain any relief from the court.
In the first, In Re Sulzer,
No. 1:01-CV-9000, MDL Docket No. 1401, 2006 U.S. Dist. LEXIS 10712, 2006 WL 4910299 (N.D. Ohio March 14, 2006) pro hac vice counsel failed to enter his email address and this did not receive notice of entry of an order. The appeal time ran before counsel was aware of the entry, and then moved for extension of time for appeal. The court denied the motion, saying "In order to receive automatic email notifications of Court Orders upon their filing, Harris (or his paralegal) merely needed to enter his email address on the docket via ECF. Apparently, however, Harris failed to take this elementary step." Further, because "[t]he law is clear that parties have an affirmative duty to monitor the dockets to inform themselves of the entry of orders they may wish to appeal," and "[t]he law is clear that parties have an affirmative duty to monitor the dockets to inform themselves of the entry of orders they may wish to appeal,” the court denied any relief.
In the second, Pace v. USAA,
2007 U.S. Dist. LEXIS 49425, 2007 WL 2022059 (D. Colo. July 9, 2007) court notices were caught in the law firm's spam filter. Thus, counsel and their party failed to appear at a scheduled settlement conference. The court ordered an award of attorney's fees to the appearing party, because there was nothing to "show that failure of plaintiff's counsel to appear for the scheduled settlement conference on May 30, 2007, was substantially justified." The law firm's IT specialist re-set spam settings, but "never bothered to check to see if any of the emails from this court were being filtered" enen though "even though he previously whitelisted the court domain names of the Colorado State Courts."