By Gary Blankenship
When an attorney wants to electronically file a document with the court, is that signing his or her name to a court document — something that can only be done by the attorney and not by a nonlawyer employee? Or is it like using a runner to file a paper document at the clerk’s office?
The Bar Board of Governors is considering asking the Professional Ethics Committee to look into whether attorneys registered with the state’s new court e-filing system can ethically provide their log-in name and password to nonlawyer employees who then file documents with the court.
The board discussed it at its January 27 meeting in Tallahassee, and then tabled the issue until its March meeting. The PEC can’t consider the matter until its June meeting at the Bar’s Annual Convention.
The issue came to the board from Supreme Court Clerk Tom Hall’s office, which has received several inquiries from lawyers on whether nonlawyer staff can use the e-filing system now being set up for the state courts.
The Florida Court E-Filing Authority Board, which oversees the Internet portal that is the access to the e-filing system, had looked at the issue. It initially adopted a policy that allowed attorneys to permit their nonlawyer staff to electronically file documents using the lawyers’ credentials. But the board eventually reconsidered and withdrew that policy and currently has no position on the matter
Board member Adele Stone, a former member and chair of the ethics panel, said it was too soon to request the PEC’s involvement.
“I feel like we don’t know enough about their [e-filing] system to send it to the Professional Ethics Committee,” she said. “You may get an opinion that is very uncomfortable and unwieldy for attorneys.”
Board member Lawrence Kibler said the issue is key for government lawyers, who may have to file a hundred or more documents in a week. Requiring them to personally do all the filing could be a heavy tax on their time.
“There needs to be some resolution to this,” he said.
Concerns with electronic filing include that it will eventually be expected to require lawyers filing court documents to certify that they have identified any confidential information in the filing (under Rule of Judicial Administration 2.420) that has to be kept from public view. It may also eventually require an electronic signature that is not merely a copy of the lawyer’s signature. Questions have arisen on whether a nonlawyer employee can do those functions for the attorney in an electronic filing.
After the meeting, board member Laird Lile noted the Florida Courts Technology Commission has also been looking at the issue. The FCTC, of which Lile is a member, is overseeing the transition from paper to e-filing and other technical matters for the Supreme Court.
For the moment, “there is no policy and therefore there is no prohibition on lawyers sharing their e-filing credentials, just like there’s no prohibition on lawyers giving a copy of the key to the front door to office staff,” he said. But just as a lawyer might have to change the office locks when an employee leaves, so he or she might have to change their e-filing log-in information. The lawyer ultimately would remain responsible for the actions of the authorized employees, he said, just as with other Bar rules.
Lile said his preference is for nonlawyer employees to be able to use an attorney’s credentials. He also said he thinks the checkbox for complying with Rule 2.420 is unnecessary and should be replaced with a notice for filers, to remind them of the rule.
“If it’s not a checkbox, then any concerns about non-attorneys filing should be eliminated,” Lile said.
The Board Review Committee on Professional Ethics voted 6-2 to recommended seeking the PEC opinion.