e-filing and Ethics Palm Beach County Bar Association, North County Section
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1 e-filing and Ethics Palm Beach County Bar Association, North County Section April 20, 2012
2 The Legal Environment is Changing More reliance on technology Paperless court system Focus on ethics
3 E-Filing and Ethics Topics 1) History of e-filing 2) Role of Clerk 3) e-filing Authority Board 4) E-Filing Portal 5) Rules of Judicial Administration 6) Florida Statute Redaction 7) ADA 8) Ethics and Professional Responsibility
4 History of e-filing 2000 Clerks Initiate e-filing With Scanning/Redaction 2002 Supreme Court Moratorium 2009 State Legislature Mandates e-filing 2009 Clerks Create e-filing Portal 2010 Clerks Create e-filing Authority 2010 Electronic Filing Court Rules
5 Clerk s Role in Court Records Fla. Stat. All court records and official records are the property of the State of Florida and the Clerk of Court is the constitutionally designated custodian. Safeguard public records and public funds Review and verification Provide safe and secure access
6 Electronic Access to Official Records Fla. Stat. (2000) County recorders shall provide a current electronic index of recorded documents By 2006 images of recorded documents must be available Palm Beach County Clerk Official Record images were first posted in /18/2012 6
7 Electronic Access to Official Records Fla. Stat. (2002) In 2002, the Clerk removes non-compliant images. No recorder can put a military discharge; death; certificate; or a court file, record, or paper relating to matters or cases governed by the Florida Rules of Family Law, the Florida Rules of Juvenile Procedure, or the Florida Probate Rules. 6/18/2012 7
8 The Journey of a Paper Document The paper document is received in the office or by mail Date and time stamps are entered Staples and paper clips are removed from every document Document scanned Non-conforming/Wrinkled papers are taken out of queue and scanned separately Upon Judge s request the file is: Manually pulled, checked out of the tracking system, & delivered to court room Upon conclusion of Judge s review or court action the file is: Retrieved from courtroom, checked in to the tracking system, re-filed in the file room Document is validated, redacted and docketed
9 And the Costs to the Clerk Official Records System $2,941,130 Imaging & Redacting Equipment/Software $12,373,726 Technical Staff $6,273,955 Total Implementation $21,588,811 6/18/2012
10 Court files; court records; official records (2002) In 2002, a social security number, complete bank account, debit, charge, or credit card number has been included in a court file or official record, such number may be included unless redaction is requested Mandated by 2009, all confidential data redacted Palm Beach County Clerk compliant in 2008
11 Supreme Court Moratorium AOSC03-49 (2003) The Supreme Court issues first Moratorium prohibiting electronic access to court record images In 2004, Supreme Court issues amended moratorium reaffirming original moratorium with limited exceptions.
12 Legislature Mandates e-filing Electronic Filing Process Fla. Stat. In 2009, legislation required each Clerk to implement an electronic filing process Each Clerk shall implement an electronic filing process Directed Supreme Court to set statewide e-filing standards by Oct. 1, 2009
13 Clerks Create Statewide Portal AOSC09-30 Statewide Standards for Electronic Access to the Courts The Clerk s e-filing Portal was created based on National e-filing standards as developed by the National Center for State Courts (XML Standard ECF 4.0). The Clerk s e-filing Portal complies with statewide technical standards as defined in AOSC09-30.
14 e-portal Functions e-filing and Recording Capability Single statewide point of entry for e-filing Universal submission system- attorneys do not need special software Provides for transmissions to/from Provides confirmation, error notices
15 E-Filing Authority Board Created in 2010, Florida Courts e-filing Authority, a rulemaking body created to govern the portal's development and implementation Consists of eight Circuit Court Clerks and the Clerk of the Supreme Court Clerk Bock elected to Board since /18/
16 e-filing Board Policies Date/time stamp Attorney Bar number access and password protected Firm Administrator Role/Law Office Manager Payment mechanism/service charge
17 Palm Beach County e-filing Pilot Report June 7, 2011 to April 10, 2012 Accepting simplified filings E-filed Documents: 9,092 Registered Attorney Users in Pilot Program: 96
18 e-filing Timeline Clerks required to accept civil filings by July 2012 Clerks required to accept criminal filings by December 2012 Mandatory e-filing for civil begins April 1, 2013 (tentative) Mandatory e-filing criminal begins Sept. 30, 2013 (tentative) 6/18/2012
19 e-filing & Attorney s Ethical Responsibilities Rule Public Access to Judicial Branch Records Created by Supreme Court Committee on Access to Court Records Notify Clerk of confidential information File notice to protect information (checklist) File motion to protect information if not on checklist
20 Judicial Administration Rule 2.420(d)(2) Public Access to Judicial Branch Records (2010) 1. Cannot Be Filed Judicial memos and drafts not in the court file Complaints alleging misconduct against Judges or other entities or individuals licensed or regulated by the Courts. 2. Filed with a Notice of Confidentiality Form Adoption records Social Security Numbers Bank account information Juvenile records 3. Confidential But Not Listed Motion Required Trade Secrets Plea agreements Substantial assistance agreement, or Other court record that reveals the identity of a confidential informant or active criminal investigative information
21 Clerk Responsibilities Under Rule of Judicial Administration Rule 2.420(d) (2010) Clerk determines if data is confidential Notify the filer within five days of filing if Clerk disagrees Hold identified data confidential for 10 days from notice date Clerk to release data if no response after 10 days Filer must file a motion within 10 days to safeguard data
22 Rule of Judicial Administration 2.420(e)(6) Sanctions for Non-Compliance (6) After notice and an opportunity to respond, the court may impose sanctions against any party or nonparty and/or their attorney, if: (A) the court determines that a designation made under subdivision (d) or a motion made under subdivision (d)(3) or (e) was not made in good faith and was not supported by a sound legal or factual basis, or (B) a document is filed in violation of subdivision (d)(2) or (d)(3). 6/18/
23 Judicial Administration Rule (2011) Minimization of the filing of sensitive information: Limits the confidential information to be placed in a court record Format sensitive information: Initials of minor Year of birth only No portion of any Social Security number Bank acct, credit, charge, debit account number If required last four digits of TIN, employee ID, DL, Passport, telephone, financial acct, brokerage account, insurance policy, loan account, customer account, or patient or health care number Truncated version , computer user name, password or PIN There are exceptions when data is required
24 ADA and e-filing Requirements Florida Rule of Judicial Administration Rule (effective ) All documents transmitted in electronic form must be ADA compliant. A document or application is accessible if it can be used by people with disabilities such as mobility impairments, blindness, and low vision and not just by people who can see well and also use a mouse. sibility.shtml(link to Supreme Court training materials on ADA filings)
25 Accessible Document A document or application is accessible if it can be used by people with disabilities, such as mobility impairments, blindness, and low vision Format document with accessible features Include built-in formatting elements Use of styles, headings, bullets, columns, tables Images must include alternative text descriptions Charts and Graphs must have alternative text descriptions Verbal tags and attributes for graphics 6/18/
26 Florida Bar Rules of Professional Conduct Rule Confidentiality of Information, (a) Consent required to reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent. Confidentiality of Information Consent required to reveal information When Lawyer must reveal information
27 Rules of Professional Conduct Rule Responsibilities Regarding Non-Lawyer Assistants (a) Paralegal, legal assistants when offering services to the public must work under the direction or supervision of a lawyer or law firm. (b)(2) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person s conduct is compatible with the professional obligations of the lawyer. A procedure should be in place that addresses confidential passwords and information, if legal assistants or paralegals leave the firm.
28 Rules of Professional Conduct Rule (b) Respect for Rights of Third Person A lawyer who receives a document relating to the representation of the lawyer s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender
29 The Journey of an Electronic Document through the Clerk s Office After E-Filing The document is received electronically through an E-filing Portal Document is electronically stamped, validated, redacted, and docketed Judges and Public view documents electronically
30 e-filing Overview List of Statutes and Rules FLORIDA STATUTES Service Charges by Clerk of the Circuit Court Electronic Access to Official Records Court files; Court Records; Official records Electronic Filing Process FLORIDA SUPREME COURT AOSC03-49 Supreme Court Moratorium AOSC09-30 Statewide Standards for Electronic Access to the Courts FLORIDA RULES OF JUDICIAL ADMINISTRATION RJA Public Access to Judicial Branch Records RJA Minimization of the Filing of Sensitive Information RJA Accessibility of Information and Technology FLORIDA RULES OF PROFESSIONAL CONDUCT Rule Confidentiality of Information, Consent Required to Reveal Information, When Lawyer Must Reveal Information Rule Responsibilities Regarding Non-Lawyer Assistants Rule (b) Respect for Rights of Third Person 6/18/2012
31 Your Role in the e-filing process Support a paperless court system Establish law firm technology, process and procedures Participate in court rule committees Keep informed on e-filing rule changes Make e-filing a success!
32 QUESTIONS? HANDOUTS
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