Hello everyone and welcome to this Ethics Alert blog which will discuss proposed Florida Bar Ethics Advisory Opinion 12-2 which was unanimously approved by The Florida Bar’s Professional Ethics Committee (PEC) at its meeting on September 21, 2012. The proposed advisory opinion states that lawyers may authorize non-lawyer staff to use their credentials to electronically file documents though the e-filing portal in the new Florida electronic filing system. The proposed opinion is available on The Florida Bar’s website at http://www.floridabar.com.
The Florida E-filing Portal will be used for all electronic court filings and only lawyers are permitted to obtain user names and passwords. According to information provided to the PEC, court clerks were receiving questions about whether lawyers could allow their support staff to use their credentials to file on behalf of the attorney under this procedure.
In 2011, the Florida Courts Technology Commission, which is responsible for developing standards for e-filing, adopted the following certification to be used when documents are filed through 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.
At its May 2012 meeting, the Technology Commission amended the certification 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.
The Florida Courts E-Filing Authority, which oversees the e-filing portal, initially voted to approve support non-lawyer staff’s use of the credentials to e-file documents; however, it later rescinded the decision stating that it did not believe that it was authorized to decide the issue.
Proposed Ethics Advisory Opinion 12-2 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 non-lawyer employees. “A prudent lawyer will monitor the non-lawyer’s activity and should immediately change the lawyer’s password if a non-lawyer with access to the lawyer’s credentials leaves the lawyer’s employ or demonstrates unreliability in using the E-Portal,” the proposed opinion states.
With regard to confidentiality, the proposed opinion states that the non-lawyer employee would be permitted to check the required certification box when e-filing under the current language of the certification, “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 non-lawyer employee to make the certification upon filing the documents.” The proposed opinion also states that the opinion applies to filings through the portal but does not address or apply to the electronic signing of documents.
According to the Bar’s Notice, Florida Bar members may comment on the proposed opinion and the PEC will consider any comments at an upcoming meeting, which has not been 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 publication of the notice.
Bottom line: Lawyers be aware: E-filing in Florida is becoming a reality. According to this proposed opinion, a lawyer is not required to actually perform the ministerial task of filing a court document. I will keep you posted…
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and/or guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
|Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670