By Gary Blankenship
Lawyers can allow nonlawyer staff to use their credentials to electronically file documents in the state courts’ new electronic filing system, according to the Bar’s Professional Ethics Committee.
The committee unanimously approved Proposed Advisory Opinion 12-2 at its September 21 meeting. The proposed opinion is published here and the committee will consider any comments at its next meeting.
“It’s the same as we do in federal court now,” said committee member Jason Korn. “We’re not stepping out of bounds.”
Bar Ethics Counsel Elizabeth Tarbert said that the portal — through which all electronic filing is done — is set up so that only attorneys can get user names and passwords. In turn, this resulted in questions to clerks about whether lawyers could allow their support staff to use their credentials to file on behalf of the attorney.
The Florida Courts E-Filing Authority, which oversees the portal, initially voted to approve support staff’s use of credentials, but then withdrew that action saying it wasn’t the proper entity to decide the issue.
Tarbert noted much of the concern centered on the requirement that attorneys certify the filing contains no confidential information or that confidential information has been handled as required by court rules. Questions were raised about whether they could delegate that certification to support staff. The Florida Courts Technology Commission, which is overseeing the implementation of electronic filing, has changed to a certification that the filer has appropriately handled confidential information. (The certification about confidential information has not yet been added to the portal.)
“This opinion would conclude that it is permissible for a lawyer to do that [allow support staff to do the electronic filing]; it’s pretty much the same ministerial function as handing a piece of paper to the clerk, as long as the employee is under the lawyer’s oversight,” Tarbert said.
The new confidential information certification approved by the FCTC provides, “The attorney filing, or directing and authorizing this filing (including all attachments), certifies that it contains no confidential or sensitive information, or that any such confidential or sensitive information has been properly protected by complying with the provisions of Rules 2.420 and 2.425, Florida Rules of Judicial Administration.”
The proposed opinion says that electronic filing is a ministerial function similar to physically transporting a document to the clerk’s office and hence under Bar rules can be delegated to properly supervised nonlawyer employees.
“A prudent lawyer will monitor the nonlawyer’s activity and should immediately change the lawyer’s password if a nonlawyer with access to the lawyer’s credentials leaves the lawyer’s employ or demonstrates unreliability in using the E-Portal,” the proposed opinion states.
On the confidentiality issue, the proposed opinion said the nonlawyer employee can check the required box during the e-filing under the current language of the FCTC’s certification, “so long as the lawyer specifically reviews the documents to be filed, ensures that the documents are in compliance with the confidentiality provisions of Florida Rules of Judicial Administration 2.420 and 2.425, and instructs the nonlawyer employee to make the certification upon filing the documents.”
The proposed opinion concludes by noting it applies only to filing through the portal and does not address the electronic signature of documents.