The Professional Ethics Committee has issued Proposed Advisory Opinion 12-2 at the request of the Board of Governors, which is reprinted below. Pursuant to Rule 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at an upcoming meeting which is yet to be scheduled. Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication.
Proposed Advisory Opinion 12-2
(September 21, 2012)
The Professional Ethics Committee has been asked by The Florida Bar Board of Governors to issue a formal opinion on whether lawyers may permit supervised nonlawyers to use the lawyer’s access credentials (log-in name and password) for filing documents with a court using the E-Portal.
The Supreme Court of Florida adopted amendments on June 21, 2012, to Florida rules of court requiring mandatory electronic filing of all documents filed in Florida courts.1 Implementation of this order is by a schedule adopted by the Court in an administrative order.2 The implementation of mandatory filing will be phased in over time, starting December 1, 2012 for the Supreme Court of Florida; starting April 1, 2013, for the District Courts of Appeal and civil courts; and criminal, traffic and juvenile courts will be subject to electronic filing by October 1, 2013.3 Ultimately, all court documents will be filed electronically unless exempted by the Court.4 Filing will occur via the E-Portal, which is a single website to serve all Florida courts. The Florida Court’s E-Filing Authority oversees the E-Portal and “was created pursuant to legislative directive to provide oversight to the development, implementation and operation of a statewide portal designed to process the filing of court documents.”5
Currently, the E-Portal only permits lawyers to obtain a user name and password for filing. Clerk’s offices have received communications from lawyers and others asking if a lawyer can provide the lawyer’s log-in name and password to nonlawyers who are supervised by the lawyer so that the nonlawyer may file documents electronically on the lawyer’s behalf.
The E-Portal Authority Board met on June 15, 2011, and unanimously adopted a motion to allow a non-lawyer to use a lawyer’s credentials to electronically file documents via the E-Portal under the direction or supervision of the lawyer.6 On September 28, 2011, the E-Filing Authority Board voted to retract the policy that was adopted on June 15, 2011 and voted not to take a position on the issue.7
The Florida Courts Technology Commission, which is responsible for developing standards for e-filing, adopted at its September 26-27, 2011 meeting, a requirement to add the following certification to the E-Portal:
I certify that the filing transmitted through the portal, including all attachments 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.8
The certification was modified by the Florida Courts Technology Commission at its May 8-9, 2012 meeting as follows:
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.9
The certification, which as of the date of this opinion had not yet been implemented, may be in the form of a check box required to be checked before submitting a filing through the e-portal or an affirmative statement regarding compliance with the referenced rules.
Rule 4-5.3 addresses a lawyer’s responsibility for the conduct of nonlawyer employees, and provides in subdivision (c) that “[a]lthough paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer shall review and be responsible for the work product of the paralegals or legal assistants.” The comment further explains a lawyer’s ability to delegate, in stating that “[i]f an activity requires the independent judgment and participation of the lawyer, it cannot be properly delegated to a nonlawyer employee.”
This Committee has previously opined that a lawyer may not permit a nonlawyer employee to sign the lawyer’s name together with the nonlawyer’s initials to discovery and notices of hearing in Florida Ethics Opinion 87-11. That opinion was based, in part, on the then existing Rule of Judicial Administration 2.060(d) which requires that all pleadings be signed by at least one lawyer of record in the matter who is licensed in Florida or who has obtained permission to appear in the matter in which the pleading is filed. Current Rule of Judicial Administration 2.515 is substantially the same. This Committee was of the opinion that permitting a nonlawyer to sign pleadings would be assisting in the unlicensed practice of law, in violation of Rule 4-5.5, Rules of Professional Conduct.
The Committee is of the opinion that a properly supervised nonlawyer may use the credentials of a lawyer to file documents via the E-Portal at that lawyer’s direction. Such a task is akin to a nonlawyer transporting a properly prepared and signed pleading to the clerk’s office and physically filing it, which is a ministerial task that may be properly delegated. The Committee cautions that the lawyer will remain responsible for the nonlawyer’s conduct and must properly supervise the nonlawyer. 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 Committee’s opinion would remain unchanged if the certification in its current form is added to the E-Portal as a check box upon filing documents 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. This opinion is limited to filing documents via the E-Portal and specifically does not address the issue of electronic signing of pleadings.
1 In re Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure— Electronic Filing. ___ So.3d ___, 37 Fla. L. Weekly S423 (Fla. 2012).
4 In re Amendments, supra.
5 E-Filing Authority Board website: http://www.flclerks.com/eFiling_authority.html
6 E-Filing Authority Board June 15, 2011 minutes, available at: http://www.flclerks.com/e-Filing_Authority/Resources/Minutes/Minutes-June_2011.pdf
7 E-Filing Authority Board September 28, 2011 minutes, available at: http://www.flclerks.com/e-Filing_Authority/Resources/Minutes/Sept_2011_BOD_draft_minutes.pdf
8 Florida Courts Technology Commission September 26-27, 2011 minutes, available at: http://www.flcourts.org/gen_public/technology/FCTC-September2011Minutes.pdf
9 Florida Courts Technology Commission May 8-9, 2012 minutes, available at: http://www.flcourts.org/gen_public/technology/FCTC-May2012MeetingMinutes.pdf