What are a lawyer's ethical duties when using a third-party vendor to electronically file court documents using the lawyer's credentials?

Plain-English summary

The Committee addressed the ethical responsibilities of New Jersey lawyers who use third-party vendors to electronically file documents with the courts. Because such vendors must use the lawyer's credentials to file, and the practice has been approved by the Supreme Court consistent with the User Participation Agreement, the Committee set out the obligations some lawyers may overlook.

The Committee grounded the duty in RPC 5.3(a), which requires lawyers to make reasonable efforts to ensure that nonlawyers who work on firm matters act in a way compatible with the lawyer's professional obligations, including communicating appropriate directions. It analogized to ACPE Opinion 701 (electronic storage and access of client files), where it held that lawyers must select vendors carefully to preserve confidentiality, the touchstone being an enforceable obligation to preserve confidentiality and security plus use of available technology against reasonably foreseeable attempts to access the data.

Applying that standard, the Committee concluded that lawyers may use third-party e-filing vendors but must exercise reasonable care in selecting one. Because some filed documents may be under seal, lawyers must ensure an enforceable obligation to preserve confidentiality and security and be satisfied that the vendor uses appropriate methods to safeguard the documents and to protect the security of the lawyer's credentials, and must communicate directions giving reasonable assurance that the vendor's conduct is compatible with the lawyer's professional obligations.

In practice

The opinion holds that, under RPC 5.3, a lawyer who uses a third-party e-filing vendor must vet the vendor, secure an enforceable confidentiality and security obligation (a point the Committee stressed for sealed documents), confirm the vendor protects both the documents and the lawyer's filing credentials, and give directions sufficient to assure the vendor's conduct is compatible with the lawyer's professional obligations. Per the opinion, the same "reasonable care" touchstone from ACPE Opinion 701 governs.

Common questions

Q: Can a New Jersey lawyer use a third-party vendor to e-file documents?

A: Yes. The Committee confirmed the practice is permitted, consistent with the Supreme Court's User Participation Agreement, but subject to the lawyer's ethical obligations under RPC 5.3.

Q: What must the lawyer do when selecting an e-filing vendor?

A: Exercise reasonable care: ensure an enforceable obligation to preserve confidentiality and security, confirm the vendor uses appropriate safeguards (important for sealed documents), and protect the lawyer's credentials.

Q: Does the lawyer have supervisory duties over the vendor?

A: Yes. Under RPC 5.3, the lawyer must communicate directions giving reasonable assurance that the vendor's conduct is compatible with the lawyer's professional obligations.

Background and rules framework

The opinion applies RPC 5.3 (responsibilities regarding nonlawyer assistance; cf. Model Rule 5.3), including its Official Comment on communicating directions to nonlawyers, and draws on the confidentiality principles of RPC 1.6 (cf. Model Rule 1.6) as developed in ACPE Opinion 701.

Citations and references

Rules of Professional Conduct:

• RPC 5.3(a) (responsibilities regarding nonlawyer assistance); cf. Model Rule 5.3
• RPC 1.6 (confidentiality of information); cf. Model Rule 1.6

Other opinions cited:

• ACPE Opinion 701 (April 2006): electronic storage and access of client files; "reasonable care" standard

See also

• NJ ACPE Op. 701: Electronic Storage and Access of Client Files
• NJ ACPE Op. 725: Debt Collection Letters and Independent Judgment
• NJ ACPE Op. 720: Paralegals Signing Routine Correspondence

Source

• Landing page: https://www.njcourts.gov/sites/default/files/notices/2018/09/n180920c.pdf
• Original PDF: https://www.njcourts.gov/sites/default/files/notices/2018/09/n180920c.pdf

Original opinion text

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

Issued by ACPE September 20, 2018

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

ACPE OPINION 734

Ethical Responsibilities of Lawyers Who Use Third Party Vendors to Electronically File Documents

The Advisory Committee on Professional Ethics received an inquiry about the ethical responsibilities of New Jersey lawyers who use third party vendors to electronically file documents with the courts. Third party vendors must use the lawyer's credentials to electronically file documents. While the use of vendors for this purpose has been approved by the Supreme Court consistent with the User Participation Agreement, some lawyers using such services may not be aware of their ethical obligations under the Rules of Professional Conduct.

Rule of Professional Conduct 5.3(a) (Responsibilities Regarding Nonlawyer Assistance) requires lawyers to make reasonable efforts to ensure that the conduct of nonlawyers who work on firm matters act in a way that is compatible with the professional obligations of a lawyer. The lawyer "should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer." Official Comment to RPC 5.3.

The Committee previously reviewed the ethical obligations of lawyers who entrust client information or documents to third parties to scan into a digitized format. ACPE Opinion 701 ("Electronic Access and Storage of Client Files") (April 2006). The Committee found that lawyers must carefully select the vendor to preserve the confidentiality of the clients' files. "The touchstone in using 'reasonable care' against unauthorized disclosure is that: (1) the lawyer has entrusted such documents to an outside provider under circumstances in which there is an enforceable obligation to preserve confidentiality and security, and (2) use is made of available technology to guard against reasonably foreseeable attempts to infiltrate the data."

Accordingly, while lawyers may use third party vendors to electronically file documents with the court, they must exercise reasonable care in selecting the vendor. As some filed documents may be under seal, lawyers must ensure that there is an enforceable obligation to preserve confidentiality and security and be satisfied that the vendor uses appropriate methods to safeguard the documents. Lawyers must also be satisfied that the vendor will adequately preserve the security of the lawyer's credentials. Further, as noted in the Comment to Rule of Professional Conduct 5.3, lawyers must "communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer."