This post was written by Megan Zavieh and originally published on on September 4, 2013.

Litigators work under tight rule and court-imposed deadlines. What if a rule allowing you to file by fax is at odds with the actual court practice of receiving faxed filings? Is a lawyer ethically bound to know the realities of a court’s inner workings, or may he rely upon published court rules of procedure?

Fax Filings – Godsend or Trap?

Many courts around the country allow filing by fax. They seem great to time-starved lawyers, but consider this. What would happen if as a litigator, you work feverishy to complete a brief on time, and when it is finally ready, you look at the clock and listen to the traffic report, and you realize that you just cannot make it to the courthouse to file in person at the clerk’s office before they close. Remembering that your court allows filings by fax, you rush to your fax machine and send off the filing. You go home for the night, satisfied with your work and confident in your filing. Only trouble is, your fax went to a central repository nonetheless. It will not show up on the docket sheet for a few days. Your adversary rushes to court in the morning seeking a default against your client; when the court looks at the docket sheet, it looks like you have not responded. So, a default is entered. The next thing you hear on the case is that a judgment has been entered against your client. When the clerk finally gets around to processing your faxed filing, they will not enter it on the docket because there is already a default entered.

It Is Happening

I hope this sounds far-fetched, because it should never happen. When a court issues rules allowing filings in various manners, it should take into account all the different ways a filing might be made before entering a default. When a court sets up a procedure to file by fax, it should set up infrastructure so that those faxed filings are handled with the same care and timeliness of an in-person filing. Yes, it should.

But what if I told you that this does happen, and that at least some courts with these procedures have no efficient way of handling fax filings, and that in these courts, a default may be taken despite a faxed response to a pleading, while the fax sits gathering dust in the central repository awaiting entry onto a docket sheet?

Attorney Ethics in Administrative Messes

I raise this issue not to crucify the courts (though they really need to clean up this mess), but to pose the question to the attorneys, what are our ethical obligations in this situation?

Related: [PODCAST] Stop Using Ethics Rules as a Crutch! What’s Really Holding You Back with Jess Birken

First, what if we do not know this issue exists? If we file by fax and have no idea that the fax goes anywhere other than directly into the clerk’s office and onto the docket sheet, it seems like we should be entitled to rely upon the rules at least for the purpose of satisfying our ethical obligations.

Second, what if we do know this is a problem? Are we not allowed to use the fax filing method? Or do we have extra ethical obligations since we know there is an issue at the court of timely handling such filings?

It seems to me that from an ethical perspective, if you know there is an issue with the clerk’s office’s handling of faxed filings, you will have an additional burden. As a threshold matter, I would not posit that you should refrain from fax filings; in my example where you cannot make it to the clerk’s office by the filing deadline, you run a far bigger ethical risk if you forego the option of fax filing. So do use it if necessary. But, when you do, there are extra precautions you should take that go beyond court rules but will help avoid ethical trouble.

  1. Fax to Opposing Counsel. If you have faxed your brief also to opposing counsel (which hopefully goes directly to their email), they will be precluded ethically from attempting to take action against you for any supposed non-filing even if it takes a few days for your filing to show up on the docket sheet. Opposing counsel cannot honestly go to court and seek a default when they have actually received a copy of your filing.
  2. Fax to Chambers. If you have a judge assigned, fax a courtesy copy to chambers. You will put the court in the same position of having an actual copy of your filing, staving off a default.
  3. Call the Clerk. Try calling the clerk’s office and explain that you have faxed in a filing which must be immediately placed on the docket. While this may well result in nothing more useful than a clerk telling you it will show up when it is processed, at least you can take down the name of the person you spoke to and the date and time you called, just in case the matter becomes a problem later on.

What If a Default Happens?

Practically speaking, unless you have stumbled upon this knowledge through someone else’s reliance on a fax filing or in friendly conversation with a clerk, the first time you learn of the issue may well be when a default is taken in case where you relied on filing by fax. So what do you do?

  1. Make All Necessary Motions. You will have to fight to undo what should never have been done in the first place. Make a motion to set aside the default or any enforcement that may have taken place. Check your local rules for provisions on how to handle fax filings that are mishandled. In California, Rule of Court 2.304(d) even contemplates mishandling of a faxed filing and provides instructions on motion practice to rectify it. See if the rules in your jurisdiction have a similar provision.
  2. Work With Your Client. Your client is likely to be livid, and rightfully so. While this really is a court problem, work with your client to resolve any conflict between you while you fight the larger problem. This may mean performing the necessary work to undo the default without charging the client.

How to Fix the Problem

This is an issue that desperately needs fixing at the court level. Our courts cannot operate efficiently when filings by approved methods take days to appear on docket sheets. Meanwhile, stay out of ethical trouble by working within the confines of the reality of the system as it currently exists.