Law Partners and Managers Must Be Active Overseers of Colleagues' Conduct

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Private Firm

Supervisory and Subordinate Lawyers  

Model Rule 5.1, which covers partners and managers in all types of law practices, requires supervisory lawyers to take affirmative measures to prevent and detect unethical conduct by lawyers in their firm, office, or agency. Those who own and manage law practices are expected to construct and maintain a framework to make sure that other lawyers in the firm toe the ethical line.  

Model Rule 5.2 makes clear that subordinate lawyers who act unethically aren't off the hook merely because they followed a supervisor's instructions. Attorneys working under the supervision of other lawyers are charged with learning the rules and laws that govern their conduct; they cannot blindly rely on instructions from those above them who push the boundaries of professional conduct. Although this rule features a narrow exception for situations involving an “arguable question” of professional duty, courts and disciplinary authorities construe that exception narrowly.  

This Special Report investigates the contours of these two key ethics standards and how they have been interpreted and applied by courts and ethics committees.  

 

The partners of a law firm and those who have comparable managerial authority in a firm have an affirmative professional obligation to make reasonable efforts to see to it that the firm has measures in place to ensure that all lawyers in the firm comply with ethics rules. Model Rule 5.1(a).

The Restatement (Third) of the Law Governing Lawyers §11(1) (2000) recognizes the same obligation in slightly different language. It provides that a partner or principal in a law firm is subject to professional discipline for failing to ensure that the firm has measures in place to provide reasonable assurance that all firm lawyers conform to the requirements of lawyer codes.

Rule 5.1(a) reflects the idea that the ethical culture of a firm influences the conduct of its members. Model Rule 5.1 cmt. [3]. “By placing some responsibility on the senior management of a firm, the rule prevents those attorneys who have the most influence over the atmosphere of the firm from turning a blind eye to the behavior of the firm's attorneys,” as one court put it. In re Anonymous, 552 S.E.2d 10, 17 Law. Man. Prof. Conduct 551 (S.C. 2001).

In effect, the rule requires the more experienced and skilled lawyers within a firm to use reasonable diligence to ensure professional conduct by all lawyers in the firm. This oversight is needed to protect the interests of clients and is justified in light of the privileged powers accorded to lawyers under the law, according to the Restatement §11 cmt. b.

In New York and New Jersey, law firms themselves are subject to discipline for not having measures in place to ensure their lawyers' ethical behavior. No other states have gone that far yet, however.

See generally Richmond, Law Firm Partners as Their Brothers' Keepers, 96 Ky. L.J. 231 (2007).

Not Vicarious Liability

Model Rule 5.1(a) does not impose vicarious liability for the misconduct of other lawyers; rather, failure to satisfy the responsibilities imposed by the rule creates an independent basis for professional discipline. In re Phillips, 244 P.3d 549, 27 Law. Man. Prof. Conduct 18 (Ariz. 2010); In re Anonymous, 552 S.E.2d 10, 17 Law. Man. Prof. Conduct 551 (S.C. 2001); Stewart v. Coffman, 748 P.2d 579 (Utah Ct. App. 1988).

Model Rule 5.1 was intended to establish the principle of supervisory responsibility in the disciplinary context without introducing the concept of vicarious liability. See ABA, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005 at 260 (2006).

A lawyer's or firm's civil liability for supervisory lapses is governed by the substantive laws of the particular jurisdiction. See generally Restatement (Third) of the Law Governing Lawyers §58 (2000), which sets out broad principles of vicarious liability.

A lawyer may be held responsible for violating Rule 5.1 whether or not state law shields the lawyer from tort liability for the conduct. ABA Formal Ethics Op. 96-401 (1996) (“lawyer must satisfy his responsibilities under Rules 5.1(b) and 5.3(b) for the conduct of those he supervises, even if state law provides certain damage limitations or exclusions for purposes of tort liability”).

Who's Covered

The general supervisory duty set out in Rule 5.1(a) expressly applies to “partners” and those who “individually or together with other lawyers” have “comparable managerial authority” in a law firm.

Nothing in the language of the rule confines it to full partners or the very top managers in a firm. The rule extends to lawyers who have intermediate managerial responsibility in a firm. Model Rule 5.1 cmt. [5]. Moreover, it apparently extends to “nonequity” partners. Richmond, The Partnership Paradigm and Law Firm Non-Equity Partners, 58 Kan. L. Rev. 507, 549 (2010). But see Tuft, Supervising Offshore Outsourcing of Legal Services in a Global Environment: Re-Examining Current Ethical Standards, 43 Akron L. Rev. 825 (2010) (raising question whether general duty of supervision under Rule 5.1(a) should continue to apply to lawyers who are partners but do not have managerial authority over firm's professional work, or to lawyers who have intermediate managerial responsibilities that do not amount to direct supervisory authority over other lawyers).

The Restatement takes the position in Section 11, Comment g, that the extent of a lawyer's general supervisory duty corresponds to the lawyer's practical ability to know matters and bring about changes within the firm, so that a partner with full voting powers has a more extensive duty than a lower-level attorney or a lawyer who is only of counsel to the firm.

The Restatement also asserts that partners may delegate their broad supervisory responsibility to a management committee or similar body to put in place and implement measures needed to ensure ethical conduct; however, partners remain responsible to take corrective steps if they reasonably should know that needed measures are not being implemented. Restatement §11 cmt. d.

Rule 5.1(a) has an expansive reach partly because “law firm” means not only a law partnership but also a professional corporation or other association authorized to practice law. See Model Rule 1.0(c). Under this broad definition, lawyers who have managerial authority in practice settings other than private firms can come within the rule.

Accordingly, Rule 5.1(a) covers a principal in a private firm organized as a sole proprietorship, professional corporation, limited liability partnership, or similar entity. Rule 5.1 cmt. [1]; see also Restatement §11(1) (duty to put in place measures to ensure that all lawyers in firm comply with rules applies to “partner in a law-firm partnership or a principal in a law firm organized as a corporation or similar entity”).

The duty imposed by Rule 5.1(a) also applies to lawyers who have “comparable managerial authority” in a legal services organization, the legal department of a government agency, or a corporation's legal department. Model Rule 5.1 cmt. [1]; Restatement §11 cmt. g. See, e.g., In re Myers, 584 S.E.2d 357, 19 Law. Man. Prof. Conduct 291 (S.C. 2003) (applying rule to prosecutor's office); ABA Formal Ethics Op. 09-454, 25 Law. Man. Prof. Conduct 471 (2009) (prosecutor's office); ABA Formal Ethics Op. 06-441, 22 Law. Man. Prof. Conduct 358 (2006) (public defenders office).

Ensuring Compliance

Under Rule 5.1(a), partners and managers must take affirmative steps to prevent misconduct, and they “may not assume that all lawyers associated with the firm will inevitably conform to the Rules.” Model Rule 5.1 cmt. [3]. Rather, the rule requires “reasonable efforts” to see that the firm has in effect “measures” that will provide “reasonable assurance” of lawyers' compliance with ethics rules.

Although this language sounds broad and lofty, it really amounts to a call for action. Law firms must set up and maintain internal policies and procedures to prevent and detect unethical conduct, including measures designed to spot and resolve conflicts of interest, to foreclose and uncover fraudulent billing and improper dealings with client funds, and to identify key deadlines in pending matters and verify they are met. Firms also must have policies and practices ensuring that lawyers receive appropriate training, supervision, and support needed to carry out their work. Model Rule 5.1 cmt. [2]; Restatement §11 cmt. g.

See In re Phillips, 244 P.3d 549, 557, 27 Law. Man. Prof. Conduct 18 (Ariz. 2010) (partners and supervisors “must take reasonable steps to ensure that firm practices, not merely policies, actually comply with ethical rules”); In re Roswold, 249 P.3d 1199, 27 Law. Man. Prof. Conduct 328 (Kan. 2011) (partner in firm that straddled two states did not adopt policies needed for compliance with pro hac vice rules); Kentucky Bar Ass'n v. Weinberg, 198 S.W.3d 595 (Ky. 2006) (partners failed to maintain institutional controls, such as tickler systems, periodic review of files, or diary systems, needed to monitor and control files); Bd. of Overseers of the Bar v. Warren, No. Cum-11-32, 2011 Me. LEXIS 122, 27 Law. Man. Prof. Conduct 766 (Me. Dec. 8, 2011) (managing partner and other executive committee members violated rule by not having any policies or procedures that called for firm's leadership to consider reporting self-destructing partner to disciplinary authority); In re Ritger, 556 A.2d 1201 (N.J. 1989) (proper oversight of lawyer's work means more than merely having supervisor be available); In re Yacavino, 494 A.2d 801 (N.J. 1985) (systematic, organized routine for periodic review of newly admitted attorney's files is needed to ensure that each lawyer in firm diligently carries out firm's responsibilities to clients in conformance with ethics rules).

Policies and procedures to ensure the confidentiality of client information are also essential under Rule 5.1(a). See “Law Firms Must Increase Their Vigilance of Data Hacking Attempts, Experts Stress,” 27 Law. Man. Prof. Conduct 675; Colorado Ethics Op. 119 (2008) (firm must have appropriate technology and systems to control transmission of metadata).

Compliance with Rule 5.1(a) is evaluated under an objective standard, according to Bd. of Overseers of the Bar v. Warren, No. Cum-11-32, 2011 Me. LEXIS 122, 27 Law. Man. Prof. Conduct 766 (Me. Dec. 8, 2011).

The precise measures needed within any particular firm depend on its size and structure, the nature of its practice, and which ethics problems are foreseeable. Restatement §11 cmt. g.

Size of Firm

Informal supervision and periodic review may be enough in a small firm of experienced lawyers, whereas more elaborate measures may be needed in large firms or in practice situations that frequently produce difficult ethics issues. Rule 5.1 cmt. [3]. See In re Phillips, 244 P.3d 549, 27 Law. Man. Prof. Conduct 18 (Ariz. 2010) (given large size of firm, more elaborate measures to ensure lawyers' compliance with ethics rules were needed); In re Myers, 584 S.E.2d 357, 19 Law. Man. Prof. Conduct 291 (S.C. 2003) (more elaborate measures needed in prosecutor's office to ensure compliance with ethics rules, in light of intensely difficult ethics issues arising in that practice).

Maryland's high court characterized the supervisory obligation imposed by Rule 5.1(a) in these terms:

 

Our Rules require that a firm's executive lawyers design and implement supervisory procedures that anticipate the ethical demands specific to the practice they lead. Proper design of a firm's internal policies and procedures is accomplished when the partners and managers in the firm are responsive to circumstances that indicate a heightened need for “more elaborate” supervision. … To meet this obligation, the Rules contemplate that partners and managing attorneys must adapt the level of supervision to a given attorney's experience and relative to the assigned tasks and the firm's nature and culture.

Maryland Attorney Grievance Comm'n v. Kimmel, 955 A.2d 269, 284, 24 Law. Man. Prof. Conduct 491 (Md. 2008).

Courts have frequently emphasized the need for firms to establish procedures to help associates when they face questions of professional responsibility. E.g., In re Cohen, 847 A.2d 1162, 20 Law. Man. Prof. Conduct 259 (D.C. 2004) (faulting firm for having no system in place to offer even rudimentary ethics training and no mechanism for review and guidance by supervisors); In re Anonymous, 552 S.E.2d 10, 17 Law. Man. Prof. Conduct 551 (S.C. 2001) (warning that firms will be disciplined if they fail to have procedures to assist new associates with ethics issues).

As one measure to help promote an ethical firm culture and discharge the obligation imposed by Rule 5.1(a), many larger firms designate an individual to whom lawyers in the firm may bring ethics problems or questions. This lawyer, often known as ethics counsel, functions as a compliance manager to help ensure ethical conduct by lawyers in the firm. See ABA Formal Ethics Op. 08-453, 24 Law. Man. Prof. Conduct 616 (2008) (addressing ethics issues relating to consultations with law firm's in-house ethics counsel).

Direct Supervisory Duty

Lawyers have an obligation under Rule 5.1(b) to make reasonable efforts to ensure that those over whom they have direct supervisory authority comply with ethics rules, including the rule requiring competent representation. See, e.g., In re Myers, 584 S.E.2d 357, 19 Law. Man. Prof. Conduct 291 (S.C. 2003) (supervising prosecutor failed to make sure that subordinate attorney disclosed that law enforcement officers snooped on privileged conversation between murder suspect and defense counsel); In re Moore, 494 S.E.2d 804 (S.C. 1997) (lawyer who turned over all discovery matters to associate had obligation to ensure that associate appropriately responded to discovery requests).

This rule applies to lawyers who have supervisory authority over the work of other lawyers in a firm, not just a lawyer's direct supervisor. Rule 5.1 cmt. [1]; see In re Anonymous, 724 N.E.2d 1101, 16 Law. Man. Prof. Conduct 126 (Ind. 2000) (Rule 5.1(b) applies not only to attorney's day-to-day supervisor but also to lawyers who have supervisory authority over lawyer).

A partner or manager in charge of a particular matter ordinarily has supervisory responsibility for other firm lawyers who work on the matter. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Rule 5.1 cmt. [5].

The professional duty set out in Rule 5.1(b) is recognized in the Restatement (Third) of the Law Governing Lawyers §11(2) (2000). The obligation applies to any lawyer who directly supervises another attorney, whether or not the supervisor is a partner and regardless of his or her rank in the hierarchy of the firm. Restatement §11 cmt. e.

Proper supervision must include mechanisms to determine whether the delegated tasks are being performed. Maryland Attorney Grievance Comm'n v. Kimmel, 955 A.2d 269, 24 Law. Man. Prof. Conduct 491 (Md. 2008).

A supervising lawyer's lack of awareness of the subordinate attorney's misconduct does not necessarily prevent discipline for neglecting this supervisory responsibility. Rule 5.1 cmt. [6]; Restatement §11 cmt. c; see also In re Anonymous, 724 N.E.2d 1101, 16 Law. Man. Prof. Conduct 126 (Ind. 2000) (lawyers may not escape liability by distancing themselves from attorneys under their direct supervision; attorneys may be disciplined under Rule 5.1(b) even if they have no knowledge of supervised attorney's misconduct); In re Wilkinson, 805 So. 2d 142, 18 Law. Man. Prof. Conduct 91 (La. 2002) (failure to oversee new lawyer's work on case made attorney culpable under Rule 5.1(b) even though he did not know that lawyer had given erroneous legal advice).

If a lawyer with direct supervisory authority over an attorney becomes aware that the attorney is mentally impaired, the lawyer has an obligation under Rule 5.1(b) to keep especially close tabs on the lawyer because of the risk that the impairment will result in ethics violations. Similarly, once partners and managers know of a lawyer's mental impairment, Rule 5.1(a) requires them to take steps designed to give reasonable assurance that the lawyer's impairment will not result in rule violations. ABA Formal Ethics Op. 03-429, 19 Law. Man. Prof. Conduct 380 (2003); Bd. of Overseers of the Bar v. Warren, No. Cum-11-32, 2011 Me. LEXIS 122, 27 Law. Man. Prof. Conduct 766 (Me. Dec. 8, 2011).

Inexperienced Attorneys

The duty of supervision is particularly acute when overseeing inexperienced attorneys. See, e.g., Florida Bar v. Nowacki, 697 So. 2d 828 (Fla. 1997) (lawyer who, while undergoing cancer treatment, delegated entire case load to new associate was responsible for associate's conduct); In re Farmer, 950 P.2d 713 (Kan. 1997) (lawyer hired inexperienced associates and failed to adequately train and supervise them); Kentucky Bar Ass'n v. Weinberg, 198 S.W.3d 595 (Ky. 2006) (lawyers assigned total responsibility for case to new associate and then failed to supervise or otherwise direct him at all); Kentucky Bar Ass'n v. Devers, 936 S.W.2d 89 (Ky. 1996) (lawyer sent untrained and uninformed employee to represent clients at creditors meeting in bankruptcy proceeding; employee gave inaccurate advice to clients); In re Wilkinson, 805 So. 2d 142, 18 Law. Man. Prof. Conduct 91 (La. 2002) (lawyer let newly admitted attorney handle matter without making any effort to oversee his work); Maryland Attorney Grievance Comm'n v. Kimmel, 955 A.2d 269, 24 Law. Man. Prof. Conduct 491 (Md. 2008) (principals of firm hired inexperienced attorney to operate satellite office by herself and rejected her pleas for assistance); Maryland Attorney Grievance Comm'n v. Ficker, 706 A.2d 1045, 14 Law. Man. Prof. Conduct 156 (Md. 1998) (lawyer who assigned difficult drunk-driving case to novice attorney one day before trial with minimum of preparation was responsible for attorney's failure to appear in proper court and to provide adequate representation).

Responsibilities for Others' Misconduct

A lawyer may be subject to professional discipline under certain circumstances for the unethical conduct of another attorney.

A lawyer will be held responsible for another attorney's rule violation (1) if the lawyer ordered or ratified the conduct, or (2) if the lawyer is a partner or lawyer with comparable managerial authority in the other attorney's firm, or has direct supervisory authority over the lawyer, and knew of the misconduct but failed to take remedial action to mitigate or avoid its consequences. Model Rule 5.1(c); Restatement (Third) of the Law Governing Lawyers §11(3) (2000).

This rule “expresses a general principle of personal responsibility for acts of another,” similar to Model Rule 8.4(a). Rule 5.1 cmt. [4].

Ordering or Ratifying Misconduct

A lawyer may be held responsible for any other lawyer's ethics violation if the lawyer orders or ratifies the misconduct. Rule 5.1(c)(1); Restatement §11(3)(a). This basis for discipline is “a kind of accessorial liability.” Restatement §11 cmt. e.

Lawyers can be disciplined under Rule 5.1(c)(1) if they instruct another lawyer to commit misconduct. E.g., In re Asher, 772 A.2d 1161, 1169 (D.C. 2001) (lawyer encouraged former associate to lie to court, dictated false letter for her to sign and send to court, and instructed her to “stick with the story” rather than be truthful with court); In re Hartley, 869 So. 2d 799 (La. 2004) (lawyer violated Rules 5.1(c)(1) and 8.4(a) by directing another lawyer to notarize signatures on document without seeing it signed; however, court declined to impose discipline for “minor violation” in light of lawyer's long and previously unblemished career).

Lawyers can also be disciplined under Rule 5.1(c)(1) if, knowing of another lawyer's misconduct, they accept and approve it. E.g., Kentucky Bar Ass'n v. Mills, 318 S.W.3d 89, 26 Law. Man. Prof. Conduct 346 (Ky. 2010) (lawyer not only defrauded clients in mass tort litigation but also ratified co-counsel's misconduct); Maryland Attorney Grievance Comm'n v. Johnson, 976 A.2d 245, 25 Law. Man. Prof. Conduct 451 (Md. 2009) (lawyer-owner of title agency ratified misconduct of lawyer who served as settlement agent in fraudulent lease/buyback arrangement); In re Bowden, 613 S.E.2d 367 (S.C. 2005) (associate who managed satellite office of firm knew of its practice of inflating government recording fees in settlement statements yet did not inform clients or ensure accuracy of information about fees on settlement statements).

A lawyer who orders or ratifies another attorney's misconduct violates Rule 5.1(c)(1) even if the lawyer is not a partner or manager in the firm where the other attorney practices, and even if the lawyer does not have supervisory authority over the other attorney. Maryland Attorney Grievance Comm'n v. Johnson, 976 A.2d 245, 25 Law. Man. Prof. Conduct 451 (Md. 2009) (lawyer-owner of title company disciplined for ratifying misconduct of lawyer who acted as settlement agent, even though owner of title company was not acting as lawyer at time and agent was independent contractor).

Remedial Action

Three categories of lawyers must take reasonable remedial action if they come to know of another attorney's misconduct at a time when its consequences can be avoided or remedied: (1) partners in the attorney's firm; (2) lawyers with managerial authority in the attorney's firm; and (3) lawyers who have direct supervisory authority over the attorney. Model Rule 5.1(c)(2); Restatement §11(3)(b).

A comment to Rule 5.1 indicates that when a lawyer who learns of misconduct is a partner or managing lawyer, “appropriate remedial action … would depend on the immediacy of that lawyer's involvement and the seriousness of the misconduct.” When the lawyer who learns of misbehavior is the miscreant attorney's supervisor, the lawyer “must intervene to prevent avoidable consequences.” Rule 5.1 cmt. [5].

The commentary to Section 11 of the Restatement emphasizes that partners or managers of a firm must take remedial action upon learning of misconduct by an attorney in the firm even if they do not directly supervise the misbehaving attorney. Futhermore, the obligation is not only to prevent misconduct but also to remedy or mitigate the consequences of a violation that has already occurred. Steps include reporting the violation if it triggers a reporting duty, and taking other reasonably available measures, such as informing a client that a lawyer in the firm has wrongfully taken the client's funds. Restatement §11 cmt. e.

See, e.g., In re Weston, 442 N.E.2d 236 (Ill. 1982) (failure to correct problems caused by mentally ill associate once they became known); In re Conwell, 69 P.3d 589 (Kan. 2003) (lawyer failed to take steps to protect funds in trust account despite complaints and judgment against law partner for mishandling funds); In re Marshall, 394 N.W.2d 790 (Minn. 1986) (failure to take reasonable remedial action to avoid or mitigate consequences of law partner's misconduct); In re Myers, 584 S.E.2d 357, 19 Law. Man. Prof. Conduct 291 (S.C. 2003) (when prosecutor told supervisor that law enforcement officers had eavesdropped on murder suspect's private conversation with defense counsel, supervisor had obligation to notify defense immediately or make sure that prosecutor did so); Connecticut Informal Ethics Op. 89-21 (1989) (lawyer whose partner failed to file suit within limitation period and then gave client money, misrepresenting it as settlement from adverse party's insurer, had obligation to rectify fraud); cf. Georgia Ethics Op. 98-1, 14 Law. Man. Prof. Conduct 337 (1998) (lawyer serving as local counsel for out-of-state attorney is subject to discipline for discovery abuses committed by out-of-state attorney if local counsel knows of abuse and ratifies it or if local counsel has supervisory authority over out-of-state lawyer); Kamaka v. Goodsill Anderson Quinn & Stifel, 176 P.3d 91, 24 Law. Man. Prof. Conduct 49 (Haw. 2008) (when firm is faced with allegations of fraudulent billing practices, partners have obligation under Rule 5.1 to examine client's account for irregularities and take reasonable remedial action).

A lawyer must have actual knowledge of the other attorney's misconduct in order to be responsible for that violation under Rule 5.1(c)(2), but knowledge can be inferred from circumstances. See Model Rule 1.0(f) (defining “knowledge”); In re Mandelman, 714 N.W.2d 512, 22 Law. Man. Prof. Conduct 282 (Wis. 2006) (in two matters, lawyer had actual knowledge of partner's neglect but failed to make sure work got done); see also In re Anonymous, 552 S.E.2d 10, 17 Law. Man. Prof. Conduct 551 (S.C. 2001) (duty to take remedial measures applies once partner or supervisor is on notice of other attorney's misconduct).

Handing Off

A lawyer who appears as counsel of record in a litigation matter should never ignore a case once it is turned over to another attorney in the firm. In this situation, lawyers have been held to violate Rule 5.1(c)(2) if they do not make sure that the other attorney stays on top of the case, even if they did not know of the neglect. E.g., In re Anonymous, 724 N.E.2d 1101, 16 Law. Man. Prof. Conduct 126 (Ind. 2000) (lawyer who co-signed complaint with partner violated Rule 5.1(c)(2) by not taking remedial action to ensure that case did not languish, even though partner had assumed exclusive control of case and lawyer did not know that partner had neglected case); In re Roswold, 249 P.3d 1199, 27 Law. Man. Prof. Conduct 328 (Kan. 2011) (lawyer serving as local counsel for case being handled by out-of-state partner violated Rule 5.1(c)(2) by not staying actively involved in case and failing to insist that partner abide by rules on pro hac vice admission).

A few states have a modified version of Rule 5.1(c)(2) that makes a partner, manager, or direct supervisor responsible if she reasonably should have known of the conduct. See, e.g., In re Cohen, 847 A.2d 1162, 20 Law. Man. Prof. Conduct 259 (D.C. 2004) (even though partner did not know of associate's misconduct, D.C.'s Rule 5.1(c)(2) expressly applies when direct supervisor “reasonably should know” of other lawyer's violation); In re Fonte, 905 N.Y.S.2d 173, 26 Law. Man. Prof. Conduct 345 (N.Y. App. Div. 2010) (lawyer who overlooked blatant warning signs that partner was looting firm's escrow account violated former rule making partners and supervisors responsible if, in exercise of reasonable management or supervisory authority, they knew or should have known about associated lawyer's misconduct).

If a lawyer's misconduct is not discovered at a time when its consequences can be remedied or mitigated, Rule 5.1(c)(2) is not violated. See Bd. of Overseers of the Bar v. Warren, No. Cum-11-32, 2011 Me. LEXIS 122, 27 Law. Man. Prof. Conduct 766 (Me. Dec. 8, 2011); In re Mandelman, 714 N.W.2d 512, 22 Law. Man. Prof. Conduct 282 (Wis. 2006) (as to one matter in disciplinary proceeding, record did not support finding that lawyer knew of partner's inaction when its consequences could have been avoided or mitigated).

Duty of Subordinate Lawyer

Model Rule 5.2(a) states in no uncertain terms that a lawyer is bound by professional conduct rules “notwithstanding that the lawyer acted at the direction of another person.” Accord Restatement (Third) of the Law Governing Lawyers §12(1) (2000).

Thus, a subordinate lawyer who violates a professional conduct rule remains responsible even if the conduct was directed by a supervisor. The fact that a lawyer acted at another attorney's direction may be relevant on the question of whether the lawyer had the knowledge required to prove the violation. Rule 5.2 cmt. [1]. The comment explains, for example, that a subordinate lawyer who filed a frivolous pleading as instructed by a supervising attorney would not be guilty of a professional violation unless the subordinate knew that the document was frivolous.

Limited Defense

Subordinate lawyers should not place too much emphasis on that comment. Although lack of knowledge of certain key facts that are known only to the supervising attorney might keep a subordinate lawyer from realizing that the instructed course of action was improper, lack of knowledge of ethics rules or other law does not shield a subordinate lawyer from discipline for misconduct. Courts in disciplinary proceedings typically insist that even new associates are bound to know and follow the law, including professional conduct rules, whatever their supervisors say. E.g., Kentucky Bar Ass'n v. Helmers, No. 2011-SC-00106-KB, 2011 Ky. LEXIS 126, 27 Law. Man. Prof. Conduct 609 (Ky. Sept. 22, 2011) (lawyer's subordinate status as associate in firm with partners who masterminded fraudulent scheme did not excuse his role in helping them pocket millions in manipulated fees from class action settlement); Disciplinary Counsel v. Smith, 918 N.E.2d 992, 25 Law. Man. Prof. Conduct 692 (Ohio 2009) (associate should have researched whether law permitted firm to collect contingent fee on clients' personal injury protection benefits rather than just following supervisor's instructions); In re Bowden, 613 S.E.2d 367 (S.C. 2005) (associate who managed satellite office for firm that made practice of inflating government recording fees on settlement statements violated Rule 5.2 by accepting partner's assurance that practice of overcharging was ethical and legal); In re Rivers, 331 S.E.2d 332 (S.C. 1984) (inexperienced lawyer who relied on senior partner's assurance that questioning of prospective jurors by private investigator was ethical was held to same standard as experienced colleagues regarding duty to discover and comply with rules of practice).

Narrow Safe Harbor

Rule 5.2(b) provides that a subordinate lawyer does not violate the ethics rules when acting in accordance with a supervisor's “reasonable resolution of an arguable question of professional duty.” The Restatement sets out the same exception in Section 12(2).

Subordinate attorneys need to realize, however, that this exception has been narrowly construed and rarely enables subordinate lawyers to escape discipline for rule violations. See, e.g., Roberts v. Lyons, 131 F.R.D. 75 (E.D. Pa. 1990) (associate must take responsibility not to file frivolous motions; associates may not unquestioningly follow directives of partners they know to be wrong; duty of every lawyer is first to administration of justice before clients or senior partners); In re Martinez, 393 B.R. 27 (Bankr. D. Nev. 2008) (safe harbor in Rule 5.2 did not apply to junior associate's conduct in refusing to accede to correction of admittedly mistaken order; lawyer is not free from ethics duties simply by virtue of practicing under direction of senior lawyer); In re Flatt-Moore, 2012 BL 10510, 28 Law. Man. Prof. Conduct 62 (Ind. Jan. 12, 2012) (conflicting evidence undercut prosecutor's defense under Rule 5.2(b) that in requiring victim approval of all plea offers, she was merely following superiors' office policy); In re Kelley, 627 A.2d 597 (N.H. 1993) (rule that subordinate does not violate ethics rules when acting in accordance with supervisory lawyer's reasonable resolution of arguable question of professional duty is no defense to conflict of interest charge when conflict would be fundamental and clear to disinterested lawyer); In re Estrada, 143 P.3d 731, 22 Law. Man. Prof. Conduct 558 (N.M. 2006) (pressure by out-of-state attorney on local counsel would not excuse misconduct, as Rule 5.2 dictates that “[a] lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person”); In re Howes, 940 P.2d 159 (N.M. 1997) (lawyer was not absolved from responsibility for violating ethics rules merely because he relied on advice of supervisory attorneys; “[t]he ABA Comment to Model Rule 5.2 makes it clear that the rule, taken as a whole, is not meant to immunize attorneys from accountability for their misconduct”); Disciplinary Counsel v. Smith, 918 N.E.2d 992, 25 Law. Man. Prof. Conduct 692 (Ohio 2009) (associate's unquestioning acceptance of supervisor's instructions about how much to charge clients in personal injury case did not absolve him of culpability for charging excessive fee).

See also Connecticut Informal Ethics Op. 00-9 (2000) (attorney in government agency that adjudicates benefit claims may not accept directions from supervisory paralegal if those instructions would conflict with lawyer's exercise of professional judgment); Pennsylvania Ethics Op. 2001-23 (2001) (government lawyer who believes no probable cause exists to prosecute case may not allow agency executive to overrule lawyer's professional judgment; if lawyer's supervisor agrees with agency executive, lawyer may go along with that decision only if supervisor's decision amounts to reasonable resolution of arguable question of professional duty under Rule 5.2(b)); cf. In re Lightfoot, 217 F.3d 914, 917 (7th Cir. 2000) (”Reliance on a superior's orders is a defense to a charge of misconduct only when reasonable, … and it is not reasonable to believe that one is authorized to mislead a court”).

For a detailed discussion of Rule 5.2 and suggested steps for associates to take if they have been instructed to engage in conduct that they consider unethical, see Richmond, Professional Responsibilities of Law Firm Associates, 45 Brandeis L.J. 199 (2007).

Rule 5.2(b) has been criticized as sending the wrong message to young associates and providing a “Nuremberg defense” for them. For differing perspectives on the rule, compare Perlman, The Silliest Rule of Professional Conduct: Model Rule 5.2(b),19 Prof. Law. (no. 3) 14 (2009), with Richmond, Academic Silliness About Model Rule 5.2(b),19 Prof. Law. (no. 3) 15 (2009).

Mitigating Circumstances

The fact that a subordinate lawyer is inexperienced, followed directions of a supervisor, or sought guidance from a senior partner, while providing no excuse for ethics violations, may serve to mitigate the disciplinary penalty imposed. People v. Casey, 948 P.2d 1014 (Colo. 1997) (lawyer's good faith compliance with supervisor's directive does not absolve lawyer of responsibility in scheme of misrepresentation, but attempt to obtain guidance from senior partner could serve as basis for mitigation); In re Helman, 640 N.E.2d 1063 (Ind. 1994) (inadequate supervision by more senior lawyers in firm, which could have corrected subordinate's actions before they rose to level of misconduct, may be mitigating factor in subordinate's disciplinary proceeding); Disciplinary Counsel v. Smith, 918 N.E.2d 992, 25 Law. Man. Prof. Conduct 692 (Ohio 2009) (in light of associate's inexperience and supervisor's control of firm's finances, reprimand was appropriate discipline for following supervisor's improper instructions about how much to charge clients); In re Donovan, 957 P.2d 575 (Or. 1998) (lawyer's inexperience considered mitigating factor).

See also ABA Standards for Imposing Lawyer Sanctions, Standard 9.3 (inexperience in practice of law may be factor used in mitigation). But see Kentucky Bar Ass'n v. Helmers, No. 2011-SC-00106-KB, 2011 Ky. LEXIS 126, 27 Law. Man. Prof. Conduct 609 (Ky. Sept. 22, 2011) (lawyer's inexperience does not prevent disbarment for participating in fraudulent scheme that cheated personal injury clients out of their fair share of aggregate settlement).

By Joan C. Rogers  

 

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and BNA.

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