Attorney's ECF Error Forfeits Client's Right to Appeal
By Kelso L. Anderson, Litigation News Contributing Editor – April 5, 2013

An attorney’s failure to update his or her email address on the electronic case filing (ECF) system may result in a client’s loss of the right to appeal, according to the Second Circuit Court of Appeals. In re Worldcom. The ruling, which could lead to increased malpractice lawsuits, also narrows a district court’s discretionary power under Federal Rule of Appellate Procedure 4(a)(6) (Rule 4(a)(6)) to reopen a case after the time to appeal has expired.


Procedural Untimeliness
In In re Worldcom, MCI, an affiliate of Worldcom, Inc., filed an adversary proceeding against Communications Network International, Ltd. (CNI) in the Southern District of New York Bankruptcy Court to recover monies for alleged unpaid services. The bankruptcy court awarded MCI damages, and CNI appealed to the district court. CNI’s sole counsel of record filed a motion to appear pro hac vice, which the district court granted.


Before litigating the case, counsel had registered an old email address with the Southern District of New York Clerk’s Office for purposes of receiving case notifications on the ECF system in another, unrelated, matter. Counsel’s pro hac vicemotion and the district court’s order granting the same listed a new email address; however, counsel did not update the ECF system with the new email address. On September 24, 2010, the district court affirmed the bankruptcy court’s ruling and the clerk’s office entered a judgment on the ECF system.


Forty-six days later, counsel filed a notice of appeal from the district court’s ruling. Simultaneous with this filing, counsel also updated his email address with the clerk’s office. When he filed the notice of appeal with the Second Circuit, counsel could have moved under Federal Rule of Appellate Procedure 4(a)(5) for an extension of time within which to file a notice of appeal; he did not do so.


Substantial Weight Standard Announced
While the appeal was pending, counsel, on December 16, 2010, moved for an order in the district court, pursuant to Rule 4(a)(6), which permits the court to reopen the time within which a litigant may file a notice of appeal if, among other things, the litigant did not receive notice of an entry of judgment. Because the clerk’s entry of judgment was sent to counsel’s old email address on ECF, the district court reasoned that counsel had not “received notice” from the clerk’s office, as required by Federal Rule of Civil Procedure 77(d) (Rule 77(d)). MCI filed a cross-appeal, and the Second Circuit consolidated both appeals.


Citing the proposition that notices of appeal must generally be filed within 30 days after an entry of judgment, the Second Circuit affirmed the district court’s findings that CNI did not “receive notice” under Rule 77(d) and thus satisfied the elements for relief under Rule 4(a)(6). Nonetheless, the appellate court, relying on Rule 4(a)(6)’s legislative history, reasoned that the district court erred in exercising its discretion when applying the rule’s hortatory language because it failed to give “substantial weight” to counsel’s error in not updating his email address.


“The result is a harsh one from the client’s perspective; however, as the majority points out, the circuit has taken a ‘hard line’ in cases of attorney neglect,” says Thomas J. Donlon, Stamford, CT, cochair of the ABA Section of Litigation’s Appellate Practice Committee. “In the Second Circuit, at least, attorneys should be very careful to keep their email addresses on file with the court up-to-date and follow the electronic docket on their cases closely,” adds Donlon.          


Some Section leaders believe the case will have negative implications for busy lawyers with limited resources. “I think the implications on federal practice are obvious. Practitioners are going to need to implement processes to protect themselves and their clients. For solo and small firms, this could create some real issues,” says Rudy R. Perrino, Los Angeles, cochair of the Section of Litigation’s Commercial and Business Litigation Committee.


Gloomy Prognostications Ahead
A dissenting judge agreed that the majority correctly held that CNI satisfied Rule 4(a)(6)’s elements, but concluded that the majority erred in not deferring to the district court’s conclusion that appellate relief was proper. According to the dissent, “[a] rule that gives district courts discretion to excuse failure to use the electronic monitoring system at all is surely broad enough to excuse failure to use that system correctly.”


Disabused of the view that Rule 4(a)(6) permits a district court to exercise its discretion once the elements of the rule are met, practitioners are concerned that the majority read into the rule a “fault” element that was previously absent. “The court implies that the only ‘fault’ that is permissible under Rule 4(a)(6) is the fault of the Postal Service or the Clerk [of Court],” says Sonia E. O’Donnell, Miami, cochair of the Section’s Appellate Practice Committee. “At a minimum, the district court should have been given a chance to explain its conclusion on ‘fault,’” explains O’Donnell.


Because the district court was reversed, and the case not remanded with instructions, some think the case may lead to malpractice lawsuits. “In my experience, a client whose lawyer misses a deadline to file an appeal, foreclosing the client from pursuing the appeal, often will sue the lawyer for legal malpractice,” says Susan K. McIntosh, Seattle, cochair of the Attorneys’ Liability Subcommittee of the Section’s Professional Liability Litigation Committee.


Keywords: notice of appeal, Appellate Rule 4(a)(6), Appellate Rule 77(d)

 
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