A recent opinion of the Second District Court of Appeal probably took many lawyers by surprise when it established a new rule — or became the first to clarify the rule — on one aspect of a very old topic: service. The rule is simple: If a party has two or more firms serving as counsel of record in a case, the court need only serve documents on one of them. See Adaimy v. Ruhl, 160 Cal.App.4th 583, 587 (2008), pet. for rev. filed (April 4, 2008). Specifically, Adaimy held that when a court clerk mailed notice of an order’s entry to only one of plaintiff’s two firms of record, that sufficed to start running the 30-day clock to file a notice of appeal — leading to the dismissal of Adaimy‘s appeal, which had been filed on the 31st day.
Adaimy thus raises two cautionary requirements for any firm serving as one of several counsel of record in a given matter: (1) Each firm must do its best to convince the court clerk to serve it with all orders and notices, and, (2) because Adaimy makes it impossible to insist that the clerk serve each of them, counsel in multifirm cases must have a good system for notifying each other promptly of all documents that any one of them receives. (I use “firm” to encompass both multilawyer firms and solo practitioners.)
Less obviously — but perhaps, in the long run, more significantly — the opinion appears to give counsel a new degree of flexibility in serving documents. Most California litigators routinely extend each other the courtesy of serving all counsel of record for each party in a case. In Adaimy, the court did not mention that practice, or suggest that it intended or expected its opinion to affect it. Nonetheless, the same rules and case law that define “service” for clerks of court apply, without distinction, to parties.
Under Adaimy, then, attorneys are only obliged to formally serve filings on one counsel of record for each party — subject, crucially, to the dictates of professional courtesy. Adaimy thus frees counsel on opposite sides of multifirm cases to agree, for example, to serve one counsel of record for each party in hard copy, and e-mail PDFs to the rest. That promises to conserve not only some modicum of natural resources, but also clients’ money — and law firm employees’ time. While Adaimy is a potential trap for the unwary, it is thus also a potential tool for the thrifty (and the green).
In the case responsible for this rule, plaintiff Adaimy was represented, when the litigation began, by a solo practitioner. After part of the case had been tried, Adaimy filed a formal notice of association of counsel for a large firm that had joined his team. That notice requested that all documents in the case be served on all counsel. Nonetheless, after Adaimy ultimately obtained a less-than-satisfactory judgment and moved for a new trial, the Los Angeles County Superior Court clerk mailed a notice of entry of the order denying that motion only to the solo representing him.
The mailing of that notice, if adequate, gave Adaimy 30 days to file a notice of appeal (See Code Civ. Proc. §§1010-1020, Cal. R. Ct. 8.108(a)); unfortunately for him, he filed one on Day 31. When the defendant moved to dismiss his appeal as untimely, Adaimy argued that service on only one of his counsel of record was insufficient, invoking “the principle that ‘[s]uccessful service by mail requires strict compliance with all statutory requirements.’” In a short opinion, the Second District noted that “[t]he question is whether service on only one of Adaimy’s two attorneys/law firms is sufficient to start the time for filing a notice of appeal” and “conclude[d] that it is.”
Adaimy cited several service-by-mail cases applying the “strict compliance” principle, but the court distinguished them by noting that, in those cases, “[the] errors . . . resulted, or could have resulted, in a lack of actual notice to the party or the party’s attorney.” (Although the opinion does not spell the point out, it appears that Adaimy never denied having actually received the notice in his case.) None of the precedents involved service on one of several firms-rather, they involved omitted ZIP codes and similar scriveners’ errors in addressing notices to a single firm. Accordingly, Adaimy may leave room for a future party finding itself on the wrong side of a deadline to argue that, in its case, service on only one firm was not sufficient because, for some excusable reason, it did not yield actual notice to the party.
Obviously, though, distinguishing Adaimy on such grounds is a row that no lawyer wants to find himself or herself needing to hoe. Adaimy thus requires caution whenever your firm acts as one of multiple counsel of record for a party – especially if, like the large firm in Adaimy, you join a case after it has begun. In every such case — whether you and the other firm(s) are local and national counsel, trial and appellate, general and specialist, or otherwise — you should do two things. First, take the initiative to do all you can to get the clerk’s office to mail your firm every document. You cannot simply file and forget about a formal association of counsel requesting that it do so. This isn’t meant as a comment on the events or attorneys in Adaimy. As noted, the opinion says nothing about the communications or circulation of documents between plaintiff and his counsel. Second, because there’s no certain way to ensure that you’ll succeed in getting every document from the clerk, work with co-counsel to create a system whereby each firm representing your client promptly ensures that all the others have received any document that it receives. It’s not good enough to communicate about newly received documents most of the time, or to always provide copies upon request; if you don’t have a consistently effective system, the one document you don’t promptly get may be the one that triggers a decisive deadline.
In addition to raising a red flag about communication, Adaimy may also raise a green one — that is, it may provide a small, positive opportunity for lawyers to conserve a few resources, natural and otherwise. That’s particularly true in document-intensive cases in which several parties have multiple counsel of record. The most obvious such resource is paper. As noted above, the general rules governing “service” (e.g., Code Civ. Proc. §§1010-1020; Cal. R. Ct. 1.21) apply without apparent distinction to clerks and to parties. See, e.g., Lee v. Placer Title Co., 28 Cal.App.4th 503, 508 (1994). Accordingly, so should the rule of Adaimy — unless some future case draws a new line between clerks and parties. Under Adaimy, you are only legally obliged, when filing a motion with voluminous supporting documents, to formally serve a hard copy on one of, say, your opponent’s three counsel of record, or one each of the five other parties’ two to four counsel each. The resultant saving of paper should, in turn, save both time and money — the former, either your own or your support staff’s; the latter, your client’s. The only loser may be the Postal Service.
That said, professional courtesy dictates that, if you rely on Adaimy in that way, you not cross the line into gamesmanship by doing anything designed to undermine the provision of timely actual notice. At a minimum, you should agree with opposing counsel in each case to formally serve documents on one counsel of record for each party, while e-mailing the others PDFs (or conveying each document in some equally prompt, professionally courteous way).
That suggestion may seem at odds with the above admonition to do all you can to get the court clerk to send you hard copies of all documents. The difference is the sender. With respect to the clerk’s office, all you can do is request that it serve you with all documents and follow up until, hopefully, it does; it doesn’t seem plausible, at least today, to ask it to e-mail you PDFs instead. But other parties’ counsel presumably can and will do so. And you, in turn, are free to do the same.
The rule of Adaimy is thus double-edged. But if lawyers use it responsibly when they serve documents, and heed its consequences when they expect to receive them — and if they reach sensible agreements about the topic — Adaimy could cut some needless paper out of multilawyer litigations.
Keith Kessler is an associate and member of the appellate practice group at Howard, Rice, Nemerovski, Canady, Falk & Rabkin. Among Mr. Kessler’s clients are Frank Quattrone, Norcal Waste Systems and Barry and Benetta Wilson (in Buell-Wilson v. Ford Motor Co.).