Papermate and Sharpie won't be donating to your state senator's campaign any time soon, but if anyone is concerned about the fate of wet ink signatures, they shouldn't cap their pen just yet. The introduction of electronic filing to New York State Surrogate's Court, which for most counties occurred in late 2020 in response to the COVID pandemic, seemed to eliminate the need for pen-to-paper signatures. The body that administers the statewide efiling system (NYSCEF), and in most cases, the courts, do not require that the original signed version--with wet ink signatures--be filed with the court. But as you might expect, rules are in place to ensure that efiled documents are signed by the right person.
As an attorney, do I have to physically sign a document that I intend to efile?
First, there's the issue of attorneys filing documents signed by themselves. We often see "/s/" on the signature line or a digital stamp of the attorneys name in cursive. Occassionally, documents are filed with formal electronic signatures that follow federal and state law. (Docusign has an informative discussion of the legality of eSignatures throughout the US HERE.) Aside from formal eSignatures, which individual courts may or may not accept, the Uniform Rules for Surrogate's Court allow “/s/” to be used in place of an actual signature where the efiler is the signatory and the document is efiled under the signatory’s username and password (207.4-a [f] [2]).
However, rules ultimately come down to enforceability. At least one Surrogate's Court does not permit “/s/” in place of an actual signature but instead requires the signer to put their John Hancock down with wet ink, scan, and then efile. And the Surrogates do have some wiggle room when it comes to applying the Uniform Rules (See NYCRR 207.1 [b]). The bottom line is: know the rule, and know whether it's applied in the county where you're filing. Your papers will get rejected if not signed properly.
If a third-party signs a document, must I have the original before efiling it?
A party who efiles a document bearing a signature represents that he or she possess the executed hard copy (NYCRR 207.4-a [f] [2]). An exception to this rule is where the filer is also the signer (as described above). So "best practice" is to obtain original, wet ink, signatures before efiling. But must the attorney maintain possession of the original? And if so, for how long? These questions appear to be unanswered, so best practice indicates that attorneys should hold onto originals in accordance with the ethics rules regarding maintaining files for seven years.
Citations
207.1 Application of Part; waiver; special rules; definitions.
(a)Application. This Part shall be applicable to proceedings in all Surrogate''s Courts in New York State.
(b)Waiver. For good cause shown, and in the interest of justice, the court in a proceeding may waive compliance with any of the rules in this Part other than section 207.2 unless prohibited from doing so by statute or by rule of the Chief Judge.
207.4-a (f) Signatures.
(1) Every document which is e-filed shall be signed as required by Part 130 of the Rules of the Chief Administrator in accordance with this section. The document shall provide the signatory’s name, address, e-mail address of record and telephone number.
(2) A document shall be considered to have been signed by, and shall be binding upon, a person identified therein as a signatory, if it is e-filed bearing the actual signature of such person, or, where the person identified as the signatory is the e-filer and the document is being e-filed under the e-filer’s user ID and password, an “/s/” is used in the space where the signature would otherwise appear. An attorney or party who e-files a document that bears an actual signature, or causes such a document to be e-filed, represents that he or she possesses the executed hard copy of such document and that he or she shall make it available at the request of the court or any party.
