Addressing The Problem: Keep Your Email Address Up To Date
Then there are the new websites everyone has purchased because somebody, whether marketeer or youth, informed you that it's no longer cool to have an AOL email address and marks you as a social media dinosaur. So people switch emails with abandon, keeping up with the skirt height or tie width of the internet. It's all good fun, right?
Not according to Judge Lewis Kaplan's opinion on appeal in the Worldcom bankruptcy case.
The rulings were entered on the electronic docket, and notice was automatically emailed to CNI's sole counsel of record, W. Mark Mullineaux, at the email address which he previously had registered with the clerk's office for the purpose of receiving such notifications. But that was an old email address.
Mullineaux's new email address was listed in his motion to appear pro hac vice in the case, but he hadn't updated his profile in the electronic case files (ECF) system. As a result, Mullineaux didn't receive the court's notification and failed to file a timely notice of appeal.
The district court wasn't overly concerned, and granted an extension of time to appeal, based upon the failure to get timely notice and lack of prejudice. The 2d Circuit, however, wasn't nearly as sympathetic.
District Judge Lewis Kaplan, sitting by designation, wrote, "There is nothing in the history of the rules ... to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves" and that "CNI's failure to receive Civil Rule 77(d) notice was entirely and indefensibly a problem of its counsel's making, and Rule 4(a)(6) was not designed to reward such negligence."
Granted, ECF is one of the most horrifically bad systems ever created, nearly impossible to decipher or use. My personal experience in trying to change things is that it frequently doesn't work, or at best adds new information without any means of deleting old information that's no longer valid. Over the years, I stacked up a number of fax numbers in ECF, as new ones didn't replace, but merely supplemented, old ones. The upshot was the faxes were sent to the oldest number, the one on top, even though it hadn't been valid in a decade.
But Judge Kaplan makes plain that keeping transmittal information up to date is the lawyer's responsibility, and the client will pay a heavy price for our failure. The ABA says lawyers are ethically required to stay abreast of technology, and even I agree. You don't have to adore it, but you have to know about it. Ignorance is no longer cute.
Many of my pals on the interwebz make fun of me for using my old AOL email address that I first got back in the early 90's. "Old man," they call me. To the cutting edge folks, it proves how out of touch I am with technology. It could only be worse if I used a Compuserve email address, since AOL, at least, still exists (and, for those who don't know) and is making a comeback.
But its not just because I have a really cool early AOL email address (SHGLaw). It's because I have no interest in changing an address where I have been readily found for decades. Would you change your phone number for kicks? The point is that people who want me can reach me, and that I get the emails I need to get. Whether somebody thinks its a cool address or not doesn't concern me.
Whether you change email addresses of necessity, such as changing firms, or like a fashion accessory, the duty to keep it current with the court rests on the attorney. It won't help to have the coolest email address ever if orders are sent to an old, dead one. Trust me that your clients won't be impressed. Nor will your malpractice carrier.
P.S. And it wouldn't hurt if the government brought one of the worst mutts of a system, ECF, into the new millennium. It was outdated when it first arrived, and it's now a relic of technological incompetence.
H/T Michael Bachrach