Can a Florida lawyer let a paralegal use the lawyer's e-filing portal log-in to file court documents?

Plain-English summary

At the Board of Governors' request, the committee addressed whether lawyers may let supervised nonlawyers use the lawyer's E-Portal access credentials to file documents, after the Supreme Court of Florida adopted mandatory electronic filing through a single statewide E-Portal that, as configured, issued user names and passwords only to lawyers. Clerks' offices had received questions from lawyers asking whether a supervised nonlawyer could use the lawyer's log-in to file on the lawyer's behalf.

The opinion applies Rule 4-5.3, which makes a lawyer responsible for the conduct of nonlawyer employees and permits delegation of duties so long as the lawyer reviews and is responsible for the work product, and notes the comment that an activity requiring the lawyer's independent judgment and participation cannot be delegated. It distinguishes Florida Ethics Opinion 87-11, which barred a nonlawyer from signing the lawyer's name to pleadings because the signature rule (then Rule of Judicial Administration 2.060(d), now substantially 2.515) requires a lawyer's signature, so permitting a nonlawyer to sign would assist the unlicensed practice of law in violation of Rule 4-5.5.

The committee concludes that a properly supervised nonlawyer may use a lawyer's credentials to file documents via the E-Portal at the lawyer's direction, treating it as akin to a nonlawyer physically carrying a signed pleading to the clerk's office, a ministerial task that may be delegated. The lawyer remains responsible for the nonlawyer's conduct and must supervise; the opinion states a prudent lawyer will monitor activity and should immediately change the password if the nonlawyer leaves or demonstrates unreliability. The committee adds that its conclusion would not change if the pending confidentiality certification (under Florida Rules of Judicial Administration 2.420 and 2.425) is added as a check box, so long as the lawyer reviews the documents, ensures compliance, and instructs the nonlawyer to make the certification. The opinion is limited to filing via the E-Portal and does not address electronic signing of pleadings.

In practice

Under the Florida rules as they stood at the time of this 2012 opinion (affirmed by the Board of Governors December 7, 2012), a lawyer may delegate E-Portal filing of reviewed and approved documents to a supervised nonlawyer using the lawyer's credentials. The opinion makes the controlling distinction the one between a ministerial, delegable task (transmitting a prepared, signed filing) and an act requiring the lawyer's independent judgment (signing the pleading), which it does not address here. It conditions the conclusion on the lawyer's continuing responsibility and supervision under Rule 4-5.3, and identifies monitoring portal use and changing the password when a nonlawyer leaves or proves unreliable as steps the committee describes.

Common questions

Q: Can a paralegal e-file using the lawyer's E-Portal log-in?

A: Yes. The opinion concludes a properly supervised nonlawyer may use the lawyer's credentials to file documents via the E-Portal at the lawyer's direction, as a ministerial task akin to physically delivering a signed pleading to the clerk.

Q: Does the lawyer stay responsible for what the nonlawyer files?

A: Yes. The opinion states the lawyer remains responsible for the nonlawyer's conduct and must properly supervise the nonlawyer, reviewing the documents to be filed.

Q: What should the lawyer do if the employee leaves or seems unreliable?

A: Per the opinion, the lawyer should immediately change the password if a nonlawyer with access to the credentials leaves the lawyer's employ or demonstrates unreliability in using the E-Portal.

Q: Does this opinion let a nonlawyer sign pleadings?

A: No. The opinion is limited to filing via the E-Portal and specifically does not address electronic signing of pleadings; Opinion 87-11 held a nonlawyer may not sign the lawyer's name to pleadings.

Background and rules framework

The opinion interprets Rule 4-5.3 (responsibilities regarding nonlawyer assistants, Model Rule 5.3) and Rule 4-5.5 (unlicensed practice of law, Model Rule 5.5) of the Rules Regulating The Florida Bar, in the context of the Florida Rules of Judicial Administration governing electronic filing, signatures (2.515), and confidentiality (2.420, 2.425). It distinguishes Florida Ethics Opinion 87-11.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.3 / Fla. Rule 4-5.3 (supervision of nonlawyer assistants)
• Model Rule 5.5 / Fla. Rule 4-5.5 (unlicensed practice of law)

Cases:

• In re Amendments to the Florida Rules of Civil Procedure et al., 102 So. 3d 451 (Fla. 2012), mandatory electronic filing

Other opinions cited:

• Fla. Ethics Op. 87-11 (nonlawyer may not sign the lawyer's name to pleadings)

See also

• Florida Bar Op. 12-3: Cloud Computing
• Florida Bar Op. 17-1: Fee Division With a Nonlawyer-Owned Out-of-State Firm
• Florida Bar Op. 24-1: Generative AI in Law Practice

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-12-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-12-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 12-2
September 21, 2012
Advisory ethics opinions are not binding.
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, who remains responsible for the filing. The lawyer must properly supervise the
nonlawyer, should monitor the nonlawyer’s use of the E-Portal, and should immediately change
the lawyer’s password if the nonlawyer employee leaves the lawyer’s employ or shows
untrustworthiness in use of the E-Portal.
This opinion was affirmed by the Board of Governors at its December 7, 2012 meeting.
RPC: 4-5.3, 4-5.5
Opinion: 87-11
Case: In re Amendments to the Florida Rules of Civil Procedure et al., ___
So.3d , 37 Fla. L. Weekly S638 (Fla. 2012) [102 So.3d 451]
Rules of
Judicial
Administration: 2.060(d), 2.420, 2.425, 2.515
The Professional Ethics Committee has been asked by The Florida Bar Board of
Governors to issue a formal opinion on whether lawyers may permit supervised nonlawyers to
use the lawyer’s access credentials (log-in name and password) for filing documents with a court
using the E-Portal.
The Supreme Court of Florida adopted amendments on June 21, 2012, to Florida rules of
court requiring mandatory electronic filing of all documents filed in Florida courts.1
Implementation of this order is by a schedule adopted by the Court in an administrative order.2
The implementation of mandatory filing will be phased in over time.3 Ultimately, all court
documents will be filed electronically unless exempted by the Court.4 Filing will occur via the
E-Portal, which is a single website to serve all Florida courts. The Florida Court’s E-Filing
Authority oversees the E-Portal and “was created pursuant to legislative directive to provide
1 In re Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the
Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Small Claims Rules, the Florida Rules
of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure—
Electronic Filing. ___ So.3d , 37 Fla. L. Weekly S638 (Fla. 2012).
2 Id.
3 http://www.flclerks.com/e-Filing_Authority/Resources/EFA_Documents/SC11-399/11-
399_091912_OrderReqResponse.pdf
4 In re Amendments, supra.

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oversight to the development, implementation and operation of a statewide portal designed to
process the filing of court documents.”5
Currently, the E-Portal permits only lawyers to obtain a user name and password for
filing. Clerk’s offices have received communications from lawyers and others asking if a lawyer
may provide the lawyer’s log-in name and password to nonlawyers who are supervised by the
lawyer so that the nonlawyer may file documents electronically on the lawyer’s behalf.
The E-Portal Authority Board met on June 15, 2011, and unanimously adopted a motion
to allow a non-lawyer to use a lawyer’s credentials to electronically file documents via the E-
Portal under the direction or supervision of the lawyer.6 On September 28, 2011, the E-Filing
Authority Board voted to retract the policy that was adopted on June 15, 2011 and voted not to
take a position on the issue.7
The Florida Courts Technology Commission, which is responsible for developing
standards for e-filing, adopted at its September 26-27, 2011 meeting, a requirement to add the
following certification to 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.8
The certification was modified by the Florida Courts Technology Commission at its May
8-9, 2012 meeting 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.9
5 E-Filing Authority Board website: http://www.flclerks.com/eFiling_authority.html
6 E-Filing Authority Board June 15, 2011 minutes, available at: http://www.flclerks.com/e-
Filing_Authority/Resources/Minutes/Minutes-June_2011.pdf
7 E-Filing Authority Board September 28, 2011 minutes, available at: http://www.flclerks.com/e-
Filing_Authority/Resources/Minutes/Sept_2011_BOD_draft_minutes.pdf
8 Florida Courts Technology Commission September 26-27, 2011 minutes, available at:
http://www.flcourts.org/gen_public/technology/FCTC-September2011Minutes.pdf
9 Florida Courts Technology Commission May 8-9, 2012 minutes, available at:
http://www.flcourts.org/gen_public/technology/FCTC-May2012MeetingMinutes.pdf

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The certification, which as of the date of this opinion had not yet been implemented, may
be in the form of a check box required to be checked before submitting a filing through the e-
portal or an affirmative statement regarding compliance with the referenced rules.
Rule 4-5.3 addresses a lawyer’s responsibility for the conduct of nonlawyer employees,
and provides in subdivision (c) that “[a]lthough paralegals or legal assistants may perform the
duties delegated to them by the lawyer without the presence or active involvement of the lawyer,
the lawyer shall review and be responsible for the work product of the paralegals or legal
assistants.” The comment further explains a lawyer’s ability to delegate, in stating that “[i]f an
activity requires the independent judgment and participation of the lawyer, it cannot be properly
delegated to a nonlawyer employee.”
This Committee has previously opined that a lawyer may not permit a nonlawyer
employee to sign the lawyer’s name together with the nonlawyer’s initials to discovery and
notices of hearing in Florida Ethics Opinion 87-11. That opinion was based, in part, on the then
existing Rule of Judicial Administration 2.060(d) which requires that all pleadings be signed by
at least one lawyer of record in the matter who is licensed in Florida or who has obtained
permission to appear in the matter in which the pleading is filed. Current Rule of Judicial
Administration 2.515 is substantially the same. This Committee was of the opinion that
permitting a nonlawyer to sign pleadings would be assisting in the unlicensed practice of law, in
violation of Rule 4-5.5, Rules of Professional Conduct.
The Committee is of the opinion that a properly supervised nonlawyer may use the
credentials of a lawyer to file documents via the E-Portal at that lawyer’s direction. Such a task
is akin to a nonlawyer transporting a properly prepared and signed pleading to the clerk’s office
and physically filing it, which is a ministerial task that may be properly delegated. The
Committee cautions that the lawyer will remain responsible for the nonlawyer’s conduct and
must properly supervise the nonlawyer. A prudent lawyer will monitor the nonlawyer’s activity
and should immediately change the lawyer’s password if a nonlawyer with access to the lawyer’s
credentials leaves the lawyer’s employ or demonstrates unreliability in using the E-Portal. The
Committee’s opinion would remain unchanged if the certification in its current form is added to
the E-Portal as a check box upon filing documents 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
nonlawyer employee to make the certification upon filing the documents. This opinion is limited
to filing documents via the E-Portal and specifically does not address the issue of electronic
signing of pleadings.