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January 1, 2013
Nonlawyer staff may e-file

Lawyers may allow nonlawyer staff under their supervision to use the lawyer’s login and passwords to electronically file court documents through the new state court electronic portal, according to an ethics opinion recently approved by the Bar Board of Governors.

Carl Schwait The board had asked the Professional Ethics Committee to look into whether there were any concerns about nonlawyer staff filing documents through the portal, which is the access point for the statewide court electronic filing system now being set up.

As the system now operates, only lawyers can be registered to file documents; there is no provision for staff to file documents.

Board Review Committee on Professional Ethics Chair Carl Schwait told the board at its December meeting that there were concerns about allowing nonlawyers to access the system through a lawyer’s password, but he said the Professional Ethics Committee likened the access to a nonlawyer employee delivering documents to the courthouse.

“You have complete responsibility for your staff, and, therefore, they can use your login name and password with your supervision,” he said.

The opinion does caution lawyers that they must act responsibly, to include guaranteeing that departed firm employees cannot still use the lawyer’s login and password to access the electronic filing system, Schwait said.

The proposed opinion states 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 opinion states.

The opinion also says that nonlawyers may check a box in the filing process to indicate the filing complies with confidentiality rules for e-filing “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.

[Revised: 08-12-2014]