Sanctions for signature by an attorney who is not an attorney of record.

In Thorne v Thorne, Unpub Per Curiam Opinion (#308382, 11/15/2012) the Court of Appeals affirmed the trial court’s order awarding attorney fees to the plaintiff as a sanction for a non attorney of record signing a subpoena for the defendant's attorney of record without including language ‘for’ or ‘with permission’ in violation of MCR 2.114.

MCR 2.114 requires that every document of a party represented by an attorney shall be signed by at least one attorney of record. A party who is not represented by an attorney must sign the document.  If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages.  In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages.

Under the circumstances of this case, the Court of Appeals could not say that the trial court clearly erred when it found that the one attorney’s act of signing her own name and not indicating that her signature was made “for” or “with permission of” the attorney of record was more than a mere clerical error. “Clerical error” can be defined as, “An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.”  In that MCR 2.114, by its plain language requires the pleading to be signed by the attorney of record, an act of certifying the document by an attorney who was not an attorney of record is not a clerical error because the non attorney of record clearly did not inadvertently or mistakenly sign the subpoena.

MCR 2.116(3)(a) provides that a pleading, appearance, motion, or other paper filed by a law firm on behalf of a client is deemed the appearance of the individual attorney first filing a paper in the action.  Subsection (b) provides that the appearance of an attorney is deemed to be the appearance of every member of the law firm.  Any attorney in the firm may be required by the court to conduct a court ordered conference or trial.