Email interactions among attorneys are prevalent. Very often attorneys send emails with a standard signature block denoting the attorney’s name and contact information. A simple click of the mouse and an attorney’s name is transmitted to another attorney or party’s inbox.
You may wonder, now, what’s in a name? But unlike the question Juliet poses in her soliloquy about the vicarious nature of concepts in Romeo and Juliet, your name matters. The way in which you convey your name in an email may even bind you to its content under Texas Rule of Civil Procedure 11.
In order for a Rule 11 agreement to be enforceable between attorneys or parties “touching any suit pending,” the agreement must be in writing, signed and “filed with the papers as part of the record, or … made in open court and entered of record.” Tex. R. Civ. P. 11.
An email or a series of emails can constitute a writing, so long as the email(s) is/are “‘complete within itself in every material detail, and which contains all of the essential elements of the agreement …’” John A. Broderick, Inc. v. Kaye Bassman Int’l Corp., 333 S.W.3d 895, 904-905, 909 (Tex. App.—Dallas 2011, no pet.) (quoting Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)).
Your sign-off in the email may satisfy the signature requirement under Rule 11. Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519, 529 (Tex. App.—Fort Worth 2011); Tex. Bus. & Com. Code §§ 322.002, 332.009. Your standard signature block may not bind you, but anything you physically type into the email that denotes an intent to personally sign the email may. Cunningham, 352 S.W.3d at 530.
In Cunningham, the court looked to the “signature block” and held it did not demonstrate an intent to sign the email. There was no evidence that the party had personally typed the signature block at the bottom of the email and, even if the sender personally typed the signature block, the email did not evidence an intention that the text be her signature. Id.
After all, signature blocks are standard; typing one in an email might just be a matter of course . . . “oops, better include a signature block.” The court also noted that the email did not contain a graphical representation of a signature, for example an “s/” followed by her name. Id.
Consider how often you may do something as seemingly benign as typing your first name in a responsive email that does not contain your standard signature block.
You are my mortal enemy and I wish the plague upon you.
With all my heart,
Depending on the content of that email and who is on the receiving end, you may find yourself defending that seemingly harmless action against a claim that you were bound to follow through with something under Rule 11. You may have viable defenses against such a claim—i.e., the parties did not agree to conduct transactions through electronic means; the material terms were not all contained in the email(s). But why place yourself in that position?
You might wonder now: Don’t both attorneys and parties have to sign a Rule 11 agreement for it to be enforceable? Not necessarily.
Texas courts apply a statute of frauds analysis to determine whether the “in writing” requirement for Rule 11 agreement enforcement is satisfied. Broderick, 333 S.W.3d at 904-905. The same analysis likely applies to the signature requirement. The statute of frauds only requires a signature by the party against whom enforcement of the contract is sought. See e.g., Tex. Bus. & Com. Code § 26.01; Berryman’s S. Fork, Inc. v. J. Baxter Brinkmann Int’l Corp., 418 S.W.3d 172, 192 (Tex. App.—Dallas 2013, pet. denied).
Rule 11 itself does not state who must sign the contract in order for it to be enforceable. Cf City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (holding judge’s signature on a summary judgment stipulation that was made in open court and was described in the court’s order satisfied Rule 11’s signature requirement).
So how can you avoid the risk? Read your emails carefully for language that might be construed to form an agreement to do something, to change some deadline, or alter some procedure, before you type in your name.
Consider creating a signature in your email system that has Rule 11 disclaimer language or wording that makes clear that the email exchange is not intended to form any agreement between the parties.
Consider including the disclaimer in every email. It is better to have to take such a disclaimer out than to forget to include it. At a minimum, have the disclaimer ready to include at the click of a button. Just don’t let your “s/” get you in a bind.
This article was originally published in the Dallas Bar Association’s Headnotes. It has been edited and is reprinted with permission.
Daniel R. Correa is a commercial litigation and appellate associate of Cowles & Thompson in Dallas and can be reached at email@example.com.