Wisconsin Lawyer
Vol. 83, No. 6, June 2010

At 4:45 p.m. on a Friday, Attorney Anderson glanced at the clock and signed the last page of the pleadings, which had to be postmarked that day to be timely. He copied them and put them into the envelopes his secretary had addressed to the court, to Client Smith, and to opposing counsel. After he ran each envelope through the postage meter in the front office, Anderson dropped them into the blue mailbox outside his building and headed home for the weekend. Another client cared for, another deadline met.

Monday morning, the first angry phone call of the day was from Client Smith. She wanted to know why the post office made her pay 88¢ to receive her copy of the pleadings. “With all the money you charge me, you can’t afford your postage?” Attorney Anderson laughed apologetically and mumbled something about the postage meter, promising to take the 88¢ off Client Smith’s bill.

At noon, opposing counsel called. “Thanks, I got the pleadings. The letter carrier made my paralegal pay him 88¢ to give up the envelope. I think you owe me a cup of coffee.” Attorney Anderson laughed an apology and promised to make up the debt. He went about the rest of his day and forgot about the postage issue.

On Tuesday afternoon, the letter carrier arrived with the day’s mail. Attorney Anderson took the pile of envelopes from his secretary’s desk and as he dug through the letters and bills, he noticed the envelope he had mailed to the court on Friday afternoon. Was there some kind of mistake? It had been returned to him, unopened, and stamped in red over the neatly printed address label was:

REFUSED, RETURN TO SENDER.
POSTAGE DUE 88¢.

Handwritten under that was: Clerk will not accept postage due mail.

The court would not accept apologetic laughter or the promise of a cup of coffee any more than it would accept postage-due mail.

With the filing deadline now past, Attorney Anderson stared down at the unopened envelope on his desk and wondered what to do first. Perhaps the court would grant him an extension if he filed an emergency motion. After all, it was a mistake … excusable neglect, right? Did he need to contact the client, who was already angry at him? What about opposing counsel, whose client might now have the upper hand? What if the court wouldn’t grant his emergency motion? Did he need to put his malpractice insurance carrier on notice?

Attorney Anderson scratched his head and wondered, “All this because of … postage?”

Maintaining the Integrity of the Mail

The U.S. Postal Service (U.S.P.S.), like most businesses, charges for its products and services. The U.S. Postal Inspection Service is a federal law enforcement agency whose task is to maintain the integrity of the U.S. mail. The agency investigates crimes including identity theft, mail fraud, violent crimes against postal employees, and revenue fraud committed by mailers. The U.S. Postal Inspection Service’s Milwaukee office works as part of a revenue protection team consisting of postal employees from marketing, business mail, and finance departments within the U.S.P.S. For several months, the team has been exploring ways to assist the U.S.P.S. in capturing revenue that is being lost as a result of fraud or mailer error.

As part of a recent revenue review conducted in the Milwaukee area, outgoing mail was examined at the mail processing plant to determine the accuracy of postage affixed by mailers. Oversized letters (larger than ¼-inch thick), large envelopes (flats), and parcels were examined, and the meter numbers of those bearing insufficient postage were recorded. During the course of this five-day review, a surprisingly large amount of mail coming from Wisconsin lawyers was recorded as underpaid.

As a U.S. postal inspector and an active State Bar member, I found it difficult to imagine that so many members of a profession that is paid, in large part, for its accuracy, are underpaying the U.S.P.S. The U.S.P.S. review revealed underpayment from the entire spectrum of law firms, from solo practitioners to the largest of Milwaukee’s law firms. It appears that the problem arises not from deliberate fraud but rather from ignorance of current rates and pricing or inadequate training on the use of firms’ postage meters. Although one might argue that 88¢ is hardly a significant amount, I would respond that if every member of the State Bar is underpaying the U.S.P.S. 88¢ per day, the amount of revenue lost because of law firms begins to add up.

Faith Mondry, Marquette 1997, is a federal agent with the U.S. Postal Inspection Service, currently assigned to Milwaukee’s mail fraud team. Since joining the Postal Inspection Service in 2002, she has carried a diverse caseload in the areas of identity theft, credit card and revenue fraud, and violent crimes.

Let’s go back to the example of Attorney Anderson. If he showed up at the clerk of courts’ office with a check for filing fees and he was a dollar short, would the clerk’s office accept his filing? If the clerk’s office made an exception and accepted the underpayment once, would it accept underpayment again if Attorney Anderson arrived the following week with the same amount? Probably not. And while the U.S.P.S. will deliver mail that the mailer has underpaid, the Domestic Mail Manual allows for it to be delivered “postage due.”

It was disturbing to see so many attorneys’ postage meter numbers recorded as a result of the revenue review. Mail going to courts, clients, insurance companies, and government agencies alike was found to be underpaid. In the interest of customer education, the U.S.P.S. decided to take an educational approach with its State Bar mailers and present the issue of postage due in a relevant context.

Some courts and government agencies will not accept postage-due mail. Although other courts and agencies have policies and accounts that allow them to accept postage-due items, it is almost a certain outcome that as the U.S.P.S. enforces current rates more aggressively, those agencies will be scrutinizing their postage-due mail to determine its sources.

Negative Effect on Client Communications

Aside from the damage to a firm’s image when its outbound mail is stamped “postage due,” there may be more serious implications for attorneys who represent incarcerated clients. Failure to properly calculate postage could affect an attorney’s ability to effectively communicate with clients. Imagine this scenario:

Attorney Jones, who practices in Milwaukee, represents Client Miller, who is incarcerated in a prison in another part of the state. Client Miller has hired Attorney Jones to represent him in a civil action against the state. Attorney Jones has prepared the notice of claim, which requires an affidavit signed by Client Miller. She mails it to Client Miller in prison. Attorney Jones, a solo practitioner, has not upgraded the software on her postage meter in two years. Every piece of mail her office sends out is underpaid, and until now, nobody seems to have noticed.

Attorney Jones mails the affidavit to Client Miller on Monday afternoon, leaving plenty of time for Client Miller to review, sign, and return it. The affidavit takes two days to reach the post office in the town where the prison is located, and another day to get sorted into the prison’s box, marked as “postage due” by a vigilant postmaster who recognizes that the mailer is using old rates. The prison refuses all postage-due mail. The letter containing Attorney Jones’s correspondence and the affidavit is picked up in outgoing mail the following day and then heads back to Milwaukee. It arrives in Saturday’s mail. On Monday, Attorney Jones realizes that the affidavit never reached her client.

The Domino Effect of Mail Delivery Delays

Even if Client Miller receives the mail piece at the prison the following day, if he does not have access to a notary public for a few days, the delay could result in a missed filing deadline. A missed deadline could result in an ethics complaint with the Office of Lawyer Regulation or a malpractice complaint. For malpractice purposes, negligence is examined: Was the attorney’s act the proximate cause of damages to the client? An examination of any type of claim or complaint will probably also result in someone asking: Was this situation avoidable? Attorneys are not required to be mistake-free, but negligence often is the source of malpractice claims. Underpaid postage could potentially have malpractice ramifications if it caused a missed deadline and ultimately, a bad result for a client.

The aforementioned scenarios may seem extreme, but the reality is that the U.S. mail plays an integral part in the American legal system, dating back as far as “the mailbox rule” all first-year law students learn. While some courts allow electronic filing, the U.S. mail still holds steady as a safe and reliable means of communicating with clients, sending and receiving original documents, and particularly communicating with incarcerated clients or individuals who do not use email. The U.S.P.S. and the Postal Inspection Service work in tandem to ensure the integrity of the U.S. mail. Educating mailers as to current postal rates and laws governing the U.S. mail is a part of maintaining that integrity. Attorneys should have a fundamental understanding of what current rates and fees are for their postage, because they are accountable for errors that may occur.

Support Tools

Support tools from the U.S.P.S. are available, free of charge, to help lawyers and their employees learn about and comply with current postal rates and pricing.

1. Using a postage meter is like having a fully functioning shipping center conveniently located in your office. You can achieve this functionality with a free software download called “Shipping Assistant,” available from http://www.usps.com/
   shippingassistant/learn.htm. This tool can help maintain your database of frequently used addresses and can print labels with tracking information for almost any U.S.P.S. product or service. It also will standardize addresses, compare rates, calculate estimated delivery times, verify deliveries, request free Carrier Pickup^®, and much more. You can reduce errors when sending important documents or correspondence by using Shipping Assistant to manage daily outbound correspondence. The Shipping Assistant program can be used for international mailing. Shipping Assistant can be an effective tool for any law firm, large or small, that regularly ships with the U.S.P.S.
2. The official U.S.P.S. Web site, www.usps.com, provides detailed information and useful tools, such as a postage calculator. Using a calculator can cut down on underpayment errors. Go to http://postcalc.usps.com/Default.aspx and complete the fields for the appropriate-shaped piece to find the correct postage.
3. A Notice 3-S Template, available on request from your local post office, can help mailers measure mail pieces in U.S.P.S. terms, to determine if a piece is too big to be processed on a machine and therefore requires extra postage. For instance, if a letter exceeds ¼ inch it is a “flat,” and if the piece exceeds ¾ inch it is a “parcel.” Pass your mail piece through a space in the template to determine the thickness and amount of correct postage.
4. Use the accompanying chart – “Is It a Letter? Flat? Parcel?” – for quick reference when questions arise as to how much postage to affix to a mail piece. Also see http://pe.usps.com/text/qsg300/Q201.htm, for a schematic of envelope sizes and rates.

Conclusion

As attorneys, we have a high degree of accountability for documents and deadlines and, as such, a responsibility to pay proper fees to the U.S.P.S. With the assistance of the U.S.P.S. and the Postal Inspection Service, all lawyers and their employees should be able to successfully calculate postage and thus avoid shortages that could have far-reaching ramifications for both attorneys and clients.  

Is It a Letter? Flat? Parcel? 

Shape-based pricing has been in place since 2007. Nevertheless, questions about some pieces are still common.

Notice 123, Price List, provides graphics on the minimum and maximum size for shape-based pricing for both domestic and international mailing. A piece that is letter size, or appears to be letter size, could be too thick or have other characteristics requiring it to be classified as a large envelope (flat) or a parcel. Here are some examples:

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