Question: Lawyer does not know how to use PDF software to redact information in pleadings. Missouri Supreme Court Operating Rule 2.02, related Missouri Supreme Court Rules, and Missouri statutes, or other law, hereinafter referred to collectively as “redaction requirements,” must be fulfilled when pleadings are filed. May Lawyer simply rely on a member of Lawyer’s nonlawyer staff to perform the redactions and e-file pleadings?

Answer: Lawyer may not entirely rely on nonlawyer staff to perform redactions and e-file pleadings, as Lawyer is responsible for documents e-filed on behalf of Lawyer at Lawyer’s direction per Rule 4-5.3.

Rule 4-5.3(c) – Responsibilities Regarding Nonlawyer Assistants, provides that the lawyer is responsible for the conduct of the nonlawyer if that conduct would be a violation of the Rules of Professional Conduct if the lawyer had engaged in that conduct. Rule 4-3.4(c) requires that Lawyer comply with rules of a tribunal, which would include fulfilling the requirements of the redaction rules. Further, Rule 4-5.3(c) goes on to state that if “(1) the lawyer orders, or with the knowledge of the specific conduct, ratifies the conduct involved; or (2) …knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action[,]” the lawyer is ethically responsible for the conduct of that nonlawyer.

Rule 4-1.1– Competence states: “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [6] to Rule 4-1.1 provides guidance on maintaining competence, and notes that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” As part of the duty of competence, Lawyer should understand the relevant technology used in Lawyer’s practice, including PDF software used for preparing documents for e-filing through Case.net. See also Informal Opinion 2018-09. While Lawyer may not use that technology day-to-day and may employ various nonlawyer assistants who work with that PFD software and assist Lawyer with e-filing, Lawyer is still responsible for understanding what information is required to be redacted and ensuring that the filings and redactions are completed in accordance with the redaction requirements as part of the duty of competence per Rules 4-1.1 and 4-5.3.

If Lawyer asks a nonlawyer assistant to e-file a document on the Lawyer’s behalf, pursuant to Rule 4-5.3(c)(1), Lawyer is responsible for the contents of that filing whether it is redacted properly or not. Lawyer should appropriately train and supervise nonlawyer support staff assisting with document creation and e-filing on behalf of Lawyer, and Lawyer should review documents prior to e-filing with the court to ensure accuracy. In the event an improperly redacted filing is made, pursuant to Rule 4-5.3(c)(2), Lawyer should take reasonable remedial measures both within the applicable Rules to remove and or correct that filing, and, depending on the circumstances, possibly to advise the client as to a breach of confidentiality in accordance with Rules 4-1.4 and 4-1.6, Comments [15] and [16]. See also Informal Opinions 2022-07, 2021-03, 2020-26, and 2017-02.

Pursuant to Rule 5.30(c), this office may only provide informal opinions regarding a lawyer’s prospective conduct pursuant to Rules 4, 5, and 6. This office cannot interpret other Rules or law, including the redaction requirements, nor can it provide legal advice. However, compliance with the redaction requirements is certainly part of a lawyer’s responsibilities pursuant to Rule 4, the Missouri Rules of Professional Conduct.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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