Should you allow others to e-file in your absence?
You are about to take leave pursuant to the Family Medical Leave Act (FMLA) or you are out sick for an extended period of time from the office. Perhaps you have expressed concern about your active files to your supervisor and your supervisor has responded that paralegals and legal assistants will file any necessary documents during your absence using your e-portal account. Should you allow another lawyer or firm employee to e-sign documents through your e-filing profile in your absence?
Florida Ethics Opinion 12-2 concludes that a lawyer may provide their log-in credentials to the e-portal to trusted nonlawyer employees for the employees to file court documents that have been reviewed and approved by the lawyer and who ultimately remains responsible for the filing. The lawyer must properly supervise the nonlawyer and monitor the nonlawyer’s use of the lawyer’s e-portal account. If a lawyer finds that the trusted employee is not trustworthy or if the employee leaves the firm, the lawyer should immediately change the password to discontinue access to the lawyers e-portal.
A lawyer should not allow others to sign and file documents using the lawyer’s name if the lawyer has not had the opportunity to read the document and verify that the document has good grounds for support. Rule 2.515(a) of the Florida Rules of Judicial Administration explicitly requires that a lawyer’s signature on a pleading verifies that the lawyer has read the document and that, to the best of the lawyer’s knowledge, information, and belief, there is good ground to support the document. Rule 4-3.4(c) of the Rules Regulating The Florida Bar requires that a lawyer must not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]”
Additionally, if nonlawyer staff are involved in preparing and filing documents that the lawyer has not personally reviewed, Rule 4-5.3(a) notes that a nonlawyer may only provide services “for or under the direction or supervision of a lawyer or law firm” and Rules 4-5.5 and 4-8.4(a) prohibit a lawyer from assisting others in the unlicensed practice of law.
What if your boss insists or tells you it is OK to have others file for you in your absence regardless of your ability to review the documents? Although a subordinate lawyer can rely on a supervising lawyer’s “resolution of an arguable question of professional duty,” Rule 4-5.2 of the Rules Regulating The Florida Bar states that a “subordinate lawyer” must comply with all ethical obligations even if acting at the direction of a supervising lawyer. Ultimately, it is your duty to ensure your compliance with the rules.
If you find you are out of the office and are not able to review the documents or your nonlawyer staff’s use of your e-portal, consider asking that the cases be reassigned during the FMLA or other leave. Alternatively, you can withdraw from representation. Withdrawing must include complying with the relevant rules of court and taking steps reasonably practicable to protect the client’s interests as stated in Rule 4-1.16.
