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E-filing was just the beginning; the tech revolution continues

Senior Editor Regular News

E-filing was just the beginning; the tech revolution continues

Senior Editor

The Florida Constitution guarantees citizens a right to access public records and a right to privacy for their personal and sensitive information. Florida lawyers, when they electronically file court documents, are at the intersection of those rights.

So it would be helpful when sending documents through the statewide e-filing portal, if you understood what must be kept confidential, how to request a court hearing on information not automatically confidential under court rules but may justifiably be kept from public view, and how to let the clerk know about mandatory confidential information in a filing and request a hearing on non-mandatory but potentially private information.

And about those filings. They must be done electronically and it’s helpful for everyone — filer, court system, members of the public accessing the records — if it’s done in the right format with electronic signatures. You do know how to do electronic signatures, right?

Then of course documents must be served, you’ve got to do e-filing correctly, and whaddya do if you’re asked to fill in at a hearing for another lawyer from the firm or a friend outside the firm?

Answer any of those or related questions wrong — and the answers aren’t always obvious — and you could wind up with difficulties from minor to major. Access could be denied to case documents or even a filing could be nullified — as though it never existed — resulting in missed deadlines, unpreserved claims, and rights lost.

The Revolution

Addressing those issues, which essentially stem from the revolution that began in Florida’s courts with the advent of electronic filing a few years ago, was the goal of a CLE held at the Bar’s recent Annual Convention — “The Next Frontier: Florida’s e-Courts — Everything You Always Wanted to Know but Were Afraid to Ask.”

The three-hour course was sponsored by the LegalFuel: The Practice Resource Center of The Florida Bar. and featured speakers Amy Borman and Murray Silverstein, both former chairs of the Rules of Judicial Administration Committee, which contains technology-related rules, and a panel of experts. Borman is general counsel for the 15th Circuit courts, and Silverstein, a former Bar Board of Governors member, is a member of the Florida Courts Technology Committee, which advises the Supreme Court on tech issues.

Silverstein said the rapid digital change began with e-filing, but that’s now a minor part of the digital court system.

“There’s an issue about redaction and we’ll tell you why that’s important. There’s an issue about electronically signing a document that goes into the court file. There’s an issue about filing the actual document through the portal system. There’s an issue about confidentiality about the documents that go into the court file. There’s an issue about how the documents are served. . . through the portal, and there’s an issue about the attributes of the document itself, how it’s created, and how its retained,” Silverstein said.

Stand-In Counsel

Technology matters are often interrelated, and even an issue that doesn’t appear to have much of a technology impact can have serious ramifications for the unaware attorney. Take the matter of substitute or stand-in counsel.

Borman and Silverstein said it’s common, particularly in foreclosure and traffic court cases, for lawyers to arrange for a stand-in or covering attorney. But frequently that attorney is unaware of his or her ethical responsibilities and the technology implications.

(Borman noted there are few rules governing covering attorneys and the Rules of Judicial Administration Committee is working on rules to address when an attorney stands in for another. See story in the July 15 News.)

Fifteenth Circuit Judge Cymonie Rowe, a panelist for the CLE, noted common problems with covering attorneys, both when they are members of the lead attorney’s firm or from outside the firm.

“The coverage counsel comes to the hearing and doesn’t know anything about the case,”
she said. ‘[In a foreclose case] they want to set a foreclosure sale and they don’t know the history of the previous sale or whether the house is occupied or not.. . . When you step into that well and you make a representation to the court, you are representing the client. . . you cannot hide behind the boss because you are going to get sanctioned.”

Coverage counsel typically don’t file notices of appearance, which has implications in the electronic age. To protect electronic data, the court system has created, after years of study, a security matrix, Silverstein and Borman said. It determines how much online access the public, judges, lawyers, and others have to electronic court records. Judges get the most access, followed by attorneys of record. If a coverage attorney has not filed a notice of appearance, he or she may not have access to the entire electronic file — information that may be needed to effectively represent the client.

Although beyond the seminar’s scope, using covering attorneys, both from inside and outside the firm, has ethical, conflict, and malpractice implications because the whole firm is affected, not just the involved attorney.

“We’re trying to illustrate that it’s imperfect and it’s fraught with difficulty,” Silverstein said. “The means which a lawyer and a law firm get [into and] out of a case is not really addressed in [Rule] 2.505(e) and that’s probably something that needs to be dealt with in RJA.”

Other Points

Among the other points made in the seminar:

• Many attorneys still struggle with Rules 2.425 and 2.240. The former encourages lawyers to avoid filing unnecessary information in the official court record, both to prevent revealing possible sensitive information and to reduce the records that have to be retained by court clerks. The latter deals with confidential information. Borman noted she’s chairing a special subcommittee of the RJA tasked with rewriting the rule. The rule contains 22 items that attorneys are required to list and notify to the clerk if they are included in the filing — things such as Social Security and bank account numbers, HIV test results and the identity of people who have been tested, estate inventories and accountings, and juvenile delinquency records. Other information, which may be confidential by law or rule, can be accompanied by a request for a hearing before a judge to determine whether it can be kept confidential. If an attorney claims an automatic exemption for information not on the list of 22 automatic exceptions, the clerk will put the filing in a special confidential folder for 10 days to allow the attorney to seek a judicial hearing.

• Many if not most attorneys either do not understand how to use electronic signatures on their electronic filings or that electronic signatures are preferred. Silverstein also said when attorneys sign their documents, electronically or in ink, they are verifying that they have complied with the confidentiality and minimization Rules 2.240 and 2.245. The electronic signature merely requires putting /s/ along with the attorney’s typed name on the electronic filing. That allows the documents to be “signed” as the document is prepared in the lawyer’s word processing software. It then can be digitally filed while retaining “intelligent” information, such as bookmarks, internal links, and hyperlinks, and the document can be searched. Most attorneys are printing out the document, manually signing it, and then scanning it, which removes the intelligent information and, unless special scanning software was used, prevents the documents from being searched.

• E-service can be both a boon and a curse for lawyers. Silverstein noted that when a document is electronically filed, it is automatically electronically served to the other parties designated by the filing attorney when the document was submitted. The filing receipt sent out by the clerk will include confirmation of service, he said. The problem can be that after attorneys have left an ongoing case, they can still continue to be served with newly filed documents. One seminar participant who recently opened her own practice said she is still getting served from the around 200 cases she handled as an assistant public defender. Carolyn Weber, a panelist for the CLE and the manager of the statewide e-filing portal, said there are two ways lawyers can remove themselves from an electronic service list. They can ask the lawyer who placed them on the list to remove their name or they can use their portal account management tools to review all cases where they are on the service list and remove themselves from old cases.

• E-filing, which really jump-started the tech revolution in the courts (although privacy concerns of online records predated electronic filing) is still evolving and many if not most lawyers are not following rules and guidelines. For example, Silverstein said lawyers should be filing text (not scanned) PDF formatted documents — text documents require less digital storage than scanned ones (which are essentially photo images) and the text versions retain “intelligent” features such as bookmarks, internal and hyper-links, and can be searched and cut-and-pasted into other documents. According to portal statistics, in May 58 documents were filed in the WordPerfect format, 111,794 on Word (the portal automatically converts both formats to PDF documents), 1,316,762 as scanned PDFs, and 712,306 at text PDFs — the preferred method. “Judges want to be able to call up documents by doing word searches and use hyperlinks and bookmarks,” Silverstein said. He noted the court system is transitioning to the PDF/A format, although that is likely to take a couple years if and when it is approved by the Supreme Court. Lawyers must use their own credentials — obtained when they sign up for a portal account — to file their documents, although they can delegate the actual filing to a trusted employee. There also are some third parties now authorized to do filing for attorneys, although they do so using each particular lawyer’s filing credentials. Lawyers cannot use their credentials to file documents for other attorneys.

On the Horizon

What’s coming technologically?

Silverstein said attorneys should soon be getting access to the Comprehensive Case Information System (CCIS) operated for the state by clerks. That will mean “real time access to all clerks’ documents and court documents,” he said. There will be greater use of electronic signatures and electronic notarization, and documents will be digitally created and stored in searchable, intelligent formats. In addition, Silverstein said there should be greater access for attorneys to court records when they are not the attorney of record in a case.

The seminar was recorded and will be offered free through the LegalFuel website.