TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 11, N.D.R.Civ.P. Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions
Attorney Lynn Boughey has requested that the Committee discuss "clarification" of Rule 11's requirement that an attorney sign "every pleading, written motion, and other paper" filed in a matter. Mr. Boughey, a sole practitioner, argues that having an authorized employee sign on behalf of the attorney is adequate to meet the requirements of the rule.
The language of Rule 11, attached, is straightforward, indicating that papers "must be signed by at least one attorney of record." The language of Fed.R.Civ.P. 11 is essentially identical, although it uses "shall" instead of must. Likewise, Minn.R.Civ.P. 11.01; S.D.C.L. 15-6-11 and Mont.R.Civ.P. 11 contain similar straightforward attorney signature requirements. None of these rules contains language specifically allowing signing by a designated employee.
Mr. Boughey has not recommended alternative language for the rule. Given that neither Fed.R.Civ.P. 11 nor any of the equivalent rules in North Dakota's neighbor states contain alternate language, Staff has not drafted amended language for Rule 11, although a copy of the rule is attached if the Committee wishes to discuss possible amendments.
Mr. Boughey cites some cases where signatures by "authorized agents" were held as satisfying Rule 11 signature requirements. The Watson and Covington cases involved agents of unrepresented parties as opposed to agents of attorneys. The Kramer and Jones cases involved papers signed by associate attorneys acting on behalf of senior attorneys. None of the cases Mr. Boughey cites involved a non-attorney agent signing on behalf of an attorney.
The court in the Watson case (an unpublished opinion) points out that the appropriate remedy for a Rule 11 signing violation is for the unsigned document to be "stricken." However, an unsigned document cannot be stricken if "omission of the signature is corrected promptly after being called to the attention of the attorney or party." See N.D.R.Civ.P. 11(a). This second chance to sign requirement seems to provide a safety valve to head off problems involving unsigned documents. It appears that Mr. Boughey's letter to Judge Holum in this case was in response to a Rule 11 request for a signature omission to be corrected.
The North Dakota Supreme Court does not seem to have addressed the issue of whether a non-attorney agent can sign a document on behalf of an attorney. In Collins v. Collins, 495 N.W.2d 293 (N.D. 1993), the Court suggested that the signature requirement is important because it lets people served with documents know who they are dealing with in a matter.