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Florida Bar Professional Ethics Committee approves proposed advisory ethics opinion addressing the use of lawyer electronic signatures

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Proposed Advisory Opinion 87-11 (Reconsideration) which was approved by the Professional Ethics Committee of The Florida Bar on June 27, 2014. The proposed Advisory Opinion states that a lawyer may permit a non-lawyer employee to affix the lawyer’s electronic signature using the format in new Rule of Judicial Administration 2.515; however, opinion cautions that, although the lawyer may delegate the electronic signing of the document under the rule of judicial administration, the lawyer must “review and be responsible for the work product” as required by Rule 4-5.3(c).

The proposed advisory opinion is below.

PROFESSIONAL ETHICS OF THE FLORIDA BAR

Proposed Advisory Opinion 87-11 (Reconsideration) [June 27, 2014]

A Florida Bar member has asked the committee to reconsider Florida Ethics Opinion 87-11, in light of recent changes to Rule of Judicial Administration 2.515 regarding electronic signatures. In Florida Ethics Opinion 87-11, the committee opined that “an attorney should not under any circumstances permit nonlawyer employees to sign notices of hearing” citing the lawyer’s obligation to comply with rules of court and to avoid assisting in the unlicensed practice of law.

Since that opinion was written, the Supreme Court of Florida has required that all documents be filed electronically. In re Amendments to the Florida Rules of Civil Procedure et al., 102 So.3d 451 (Fla. 2012). Subsequent to that order, the Rules of Judicial Administration were amended to address electronic signatures. In re Amendments to the Florida Rules of Judicial Administration et al., 102 So.3d 505 (Fla. 2012). New Rule of Judicial Administration 2.515 states as follows:
(a) Attorney Signature. Every pleading and other document of a party represented by an attorney shall be signed by at least 1 attorney of record in that attorney’s individual name whose current record Florida Bar address, telephone number, including area code, primary e-mail address and secondary e-mail addresses, if any, and Florida Bar number shall be stated, and who shall be duly licensed to practice law in Florida or who shall have received permission to appear in the particular case as provided in rule 2.510. The attorney may be required by the court to give the address of, and to vouch for the attorney’s authority to represent, the party. Except when otherwise specifically provided by an applicable rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other document; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other document had not been served.

(b) Pro Se Litigant Signature. A party who is not represented by an attorney shall sign any pleading or other paper and state the party’s address and telephone number, including area code.

(c) Form of Signature.

(1) The signatures required on pleadings and documents by subdivisions (a) and (b) of this rule may be:

(A) original signatures;

(B) original signatures that have been reproduced by electronic means, such as on electronically transmitted documents or photocopied documents;

(C) electronic signatures using the “/s/,” “s/,” or “/s” formats by or at the direction of the person signing; or

(D) any other signature format authorized by general law, so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and documents with that signature format.

***
In light of the new rule of judicial administration, the committee is of the opinion regarding electronic signatures alone that a lawyer may permit a nonlawyer employee to affix the lawyer’s electronic signature using the format indicated by subdivision (c)(1)(C) above. The committee cautions that although the lawyer may delegate the electronic signing of the document under the rule of judicial administration, the lawyer must “review and be responsible for the work product” as required by Rule 4-5.3(c). Thus, lawyers may only direct a nonlawyer to affix the electronic signature permitted by the rule after reviewing and approving the document to be filed. The committee’s conclusion in Florida Ethics Opinion 87-11, that generally a nonlawyer may not sign pleadings, otherwise remains unchanged.
According to the Bar’s notice, comments from Florida Bar members are solicited on the proposed opinion and the committee will consider any comments received at a meeting to be held at 9:30 a.m. on Friday, October 17, at the Tampa Airport Marriott in conjunction with the Bar’s Fall Meeting. Comments must have 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 32399-2300, and must be postmarked no later than 30 days from the date of this publication.

Bottom line: This proposed opinion revises the previous opinion addressing lawyer’s signatures to bring it into the brave new digital world since e-filing has now been made mandatory in Florida. As I have said (and blogged about) in the past, lawyers must be very wary of allowing non-lawyers to affix an electronic signature and e-file documents to insure that there are no breaches of confidentiality, whether it be client confidentiality or confidentiality under existing law.

Let’s be careful out there.

Disclaimer: this Ethics Alert blog is not an advertisement and 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
jcorsmeier@jac-law.com
http://www.jac-law.com

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