The Supreme Court of Virginia dropped a pair of decisions on us last month that highlight the wisdom of Mr. Baldwin’s* worldview–although, oddly enough, neither came up in the context of contracts. Read together, the holdings in Aguilera v. Christian and Shipe v. Hunter make it clear that when the Code or the Rules require a lawyer to sign a pleading, they mean that the lawyer has to physically sign the pleading.
In Aguilera, the Court held that a pro se litigant could not authorize a person who wasn’t authorized to practice law in Virginia to sign a pleading on his behalf.
Aguilera asked his neighbor, who was licensed to practice in DC but not Virginia, to sign a complaint. It appears that he did so on the day before the two-year statute of limitations on his claim ran.
The trial court dismissed the case, and the Supreme Court affirmed. It held that Aguilera’s complaint was a nullity because it was not signed by the party or a lawyer licensed to practice in Virginia.
Shipe is marginally more interesting. It addressed the related question of whether a lawyer who’s licensed in Virginia may authorize a lawyer who is licensed elsewhere, but not in Virginia, to sign a pleading on the Virginia lawyer’s behalf.
The answer, as you’ve surely guessed, is no. The trial court held that the complaint was a nullity, entered summary judgment in favor of the defendant, and dismissed the case with prejudice.
On appeal, the Supreme Court affirmed. It noted that Code Section 8.01-271.1 generally provides that every pleading, written motion, and other paper of a represented party shall be signed by at least one attorney of record in his individual name. Rule 1:4(c) similarly requires a lawyer to sign a pleading, and Rule 1A:4(2) provides that no out-of-state lawyer may appear pro hac vice except in association with a Virginia lawyer, and any pleading will be invalid unless local counsel signs it.
Relying on case law from other contexts, the plaintiff argued that a person may make another his agent for purposes of signing a pleading. The Court rejected that argument. It found that, to deter frivolous litigation the General Assembly had decided to hold lawyers and pro se litigants highly accountable for their pleadings via the sanction provisions of Code Section 8.01-271.1.
Because of the strong public policy considerations underlying those statutory provisions and rules, we construe them to require that a lawyer who files a pleading in a Virginia tribunal must append his personal, handwritten signature to the pleading.
(Emphasis added.) The Court also observed that Rule 1:5 implies that a member of a law firm signing a pleading must do so in handwriting, by providing that signatures to briefs and petitions for rehearing–and only those papers–may be printed or typed and “need not be in handwriting.”
Thoughts about Aguilera and Shipe:
- When the Code or Rules require a signature, unless they specify otherwise, they apparently require an old-fashioned, personal pen-and-ink signature. The Court has repeatedly held that a pleading signed in a representative capacity by someone who isn’t a Virginia lawyer is a nullity. And yet, even after these two recent decisions came down, I’ve seen at least question from a lawyer on exactly this point. The signature requirement is a bright-line rule.
- That said, it is kind of a harsh bright-line rule. You almost get the sense from the policy discussion in Shipe that the Court wished it had a little leeway, but felt constrained by the statute (and, err, its own rules).
- What are the implications for appellate lawyers? Appellate briefs are printed. Sure, Rule 1:5 allows signatures on briefs and petitions for rehearing to be typed or printed–but what about petitions for appeal? Emmert suggests that a lawyer’s scanned signature attached to a pleading will be sufficient, as long as it’s his signature. I think he’s right–frankly, we’ve gone bananas if he’s he’s wrong–but I also suspect that it’s only a matter of time before a crafty lawyer in a tall-building firm challenges a brief from a commercial printer on this ground.
*Totally off-topic, but hilarious observation: Alec Baldwin’s IMDB bio describes him as “Raven haired, suavely handsome and prolific New York-born actor Alec Baldwin.”