-- N.J.L.J. ----
                                                                                 (September --, 2018)
                                                                   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.”




                                                 2