Companies must continually adapt and evolve in order to survive. A stagnant organization is destined to fail. This is nothing new. Customers demand better products, improved services, and organizations reassess and change. Why should lawyers be any different? Lawyers must adapt and evolve. In fact, not only do lawyers have a duty to the representation of their clients, they also have a duty to maintaining competency as a practitioner of the legal profession to progress. Today, this includes technology competency.
Competency in the practice of law clearly means lawyers must keep abreast of changes in substantive and procedural law in the representation of clients. Supreme Court Rule 1.1 demands “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” of clients. Just as rules change, statutes are amended, and cases continue to interpret them, the role of technology brings various benefits and risks to the law and its practice, often at an exponential rate (e.g. see Where Is Our Legal Profession Heading? Part One & Part Two).
Technology Competency Is Required
In 2012, the American Bar Association modified Comment 8 to its Model “Competence” Rule 1.1 to require lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” More than 20 states, including Illinois as of January 1, 2016, have since adopted this “technology competency” requirement. While such a requirement includes a working knowledge of the scope of eDiscovery or using electronic resources for legal research, it also means having and maintaining an understanding of technology in general.
At the same time Illinois was taking this significant step forward to expand on the demands of competency for its lawyers, it further and firmly planted its mandatory application of technology into its Rule for the manner of serving documents other than process and complaints on parties not in default in the trial and reviewing courts. Email service changed from an optional, opt-in method of service under Rule 11, to one of the stand-alone options for delivering documents.
You may recall that Illinois modified Rule 11 back in 2013 to permit service by email, but not require it unless a local circuit had adopted mandatory e-filing pursuant to Illinois Supreme Court Electronic Filing Standards. Nevertheless, just as soon as the optional email service took effect, advocates for progressing Illinois to a statewide e-filing court system were confident that a change from optional to mandatory acceptance by email in Rule 11 was a certainty sooner rather than later. As of January 1, 2016, that change arrived.
Mandatory Acceptance of Email Service to Attorneys
Now, in accordance with Supreme Court Rule 131(d)(1), attorneys filing or serving documents in any cause must include an email address on the document. This includes filings made in Illinois appellate courts (also see Rules 341(e) and 367(d)). This email address (and up to two optional secondary email addresses) qualifies as one of the acceptable forms of service under Rule 11(b)(6). As such, the relevant email addresses would be appropriately designated on the document’s certificate of service to indicate that method of service used by the sender. The option to opt-in under Rule 131(d)(3) only remains for service by facsimile transmission, as email becomes one of the stand-alone methods of proper service.
Lawyers may alter how they use email communications in a manner to better control their case management and electronic file storage with this advent of mandatory acceptance of email service. For example, a law firm might consider designating a specific email address for all service to the firm, or to and for each attorney, or even a separate email address for every case file.
As these techniques and practices evolve, so may the potential for more mistakes, confusion, or miscommunications. We must be reminded that we all handle change in different ways and at different paces, calling upon a need for patience and civility to resolve the conflicts when they do occur.
Email Service to Pro Se Parties and “Good Faith Cooperation”
Unrepresented parties may designate an email address for service by including one on the unrepresented party’s filing, but it is not required for non-attorneys. If the unrepresented party omits an email address, then service must be made by a method specified in Rule 11 other than email transmission. This opt-in allowance by unrepresented parties may see some changes as Illinois courts establish the procedures and requirements for electronic filing of all civil cases in Illinois by 2018.
The statewide standardized forms developed by the Illinois Supreme Court Access to Justice Commission, which are required to be accepted by all Illinois Circuit Courts, make it easy for pro se litigants to opt-in to email service by including the Rule 131(d) consent language with a check box and space for an email address on Entry of Appearances, Answers, and other relevant forms. These forms should be easily accessible at your local courthouse as well as online.
Service to attorneys via email requires ensuring the proper email is used for delivery in the similar manner that one must ensure the proper mailing address of the recipient. However, the new Rule 11 is purposefully vague as to what format the document must or should be in when transmitted electronically via email. The Committee Comment from December 9, 2015 related to the amending of Rule 11 emphasizes the flexibility of acceptable format types:
[T]he Committee considered whether special additional rules should apply to documents served by email, e.g., specified file formats, scan resolutions, electronic file size limitations, etc. The Committee rejected such requirements in favor of an approach which provides flexibility to adapt to evolving technology and developing practice. The Committee further anticipates good faith cooperation by practitioners. For example, if an attorney serves a motion in a format which cannot be read by the recipient, the Committee expects the recipient to contact the sender to request an alternative electronic format or a paper copy. (Emphasis added.)
The most commonly used format for service by email is likely the “Portable Document Format” or PDF, a cross-platform file type developed by Adobe. This may be preferred to directly emailing an opposing party the final Word format version of the filing due to the metadata provided along with the Word format file.
Metadata – the internal information about the file in addition to the actual content of the file – can identify a lot about a document, picture, or other file type that may be confidential or otherwise reveal private information. While a PDF still may have metadata, such as the author’s name, keywords, and copyright information, it should protect against other document information such as who worked on the document and what revisions were made.
It is expected that the transmitted file is easily readable by the recipient regardless of the file type used in emailing service of documents to another attorney or a consenting unrepresented party. This may seem obvious or simple regarding most filed documents that can easily and inexpensively be emailed. Nevertheless, complications may occur when certain unique files, such as picture and video exhibits, included in email service are unreadable due to the system or software limitations of the recipient’s computer.
Proof of Service and Effective Date
Under Supreme Court Rule 12(b)(6), the attorney serving by email must file a certificate stating “the time and place of transmission to a designated e-mail address of record.” Non-attorney filers must include the same information in affidavit form pursuant to a verification under 735 ILCS 5/1-109. Email service is deemed complete on the first court day following transmission, pursuant to Rule 12(f).
It has been presumed that email service may be transmitted at any time of day as the Rule provides no express limitations as to the time the email is sent (read: transmitted), so long as the proof of service accurately states such time and place of transmission. Theoretically, a paradox might exist when, for example, an email could be transmitted from the sender’s computer at 11:59 p.m. and service could be considered completed as of a minute later, even if the email with attached service document has not made the complete electronic journey to the recipient’s inbox.
Technology Won’t Wait up for You
As the legal profession has historically been known for being slow to adapt to change, it is no particular surprise that lawyers might be slow to adopt and accept this change in service. The fax machines will continue to beep and chirp. The copy machines will continue to churn out copy after copy of pleadings for mailing. The mail carrier’s bin will remain full of outgoing and incoming parcels, all of which might have been avoided with a click to attach a PDF and a click to send it.
Changing technologies and the need to maintain an understanding of them has led to some frustrations from attorneys lacking tech savvy. Rule of Professional Conduct 1.1 makes it clear that competent representation of clients now demands it. And just as these recent Rule changes were specifically drafted to be elastic to conform to the changes in technology, so must the legal profession and the competency of its attorneys. We owe it to ourselves and our clients.