Am I My Brother’s Keeper? Supervising Attorneys Under the Rules of Professional Conduct

Rules of Professional Conduct
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Plaintiffs in attorney malpractice claims typically include the individual attorney and the law firm as named defendants. It is a practice that is intuitively, substantively, and procedurally correct. The individual attorney clearly has professional obligations to the client. The firm also has professional obligations. In particular, the obligations of the members of the law firm to supervise the conduct of the firm’s lawyers is more fully described in Rule 5.1 of the Rules of Professional Conduct. That rule informs as to how and when we become “our brother’s keeper”.

Rule 5.1 has two parts. The first part addresses the obligations of lawyers with “managerial authority over the professional work of a firm.” That includes members of a partnership, shareholders of a law firm, and members of other associations authorized to practice law. It also applies to in-house legal departments and government agencies. The second part of Rule 5.1 addresses attorneys with direct supervisory authority over other attorneys.

THE DUTIES OF ATTORNEYS WITH “MANAGERIAL AUTHORITY”

Rule 5.1(a) requires that partners in a firm or others with managerial authority “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” The Rule appears, however, to beg the question of whether a firm “must” have a lawyer with managerial authority. May a firm of all partners evade Rule 5.1(a) by simply not appointing a partner with managerial authority? The short answer to that question is that if the firm fails to designate a particular person to be the manager, it then becomes a fact question as to which lawyer(s) “possess” the de facto role of manager. Regardless of whether a law firm designates a manager, it is clear that a firm cannot simply assume its lawyers will behave ethically. The firm’s leadership or management must make “reasonable efforts” to establish “measures” to “reasonably assure” that all lawyers within the firm comply with the Rules.

Rule 5.1(a) does not specifically describe what “reasonable efforts” or “measures” should be employed by firm management. But the comments to Rule 5.1 provide some guidelines for compliance. The comments suggest that firms should have policies or procedures intended generally to accomplish tasks like identifying conflicts of interest and dates by which actions should be taken, accounting for client funds or property, and ensuring supervision of inexperienced attorneys. The details of those policies are at the discretion of firm management based on firm size and nature of practice. Importantly, there is nothing in the Rules of Professional Conduct that mandates that a firm have written policies relating to attorney supervision.

Measures beyond these general guidelines are also at the discretion of the firm. A sole practitioner, for example, will need knowledge of the Rules of Professional Conduct. A small firm of experienced attorneys should also be able to manage attorney compliance with little effort. Firms are not required to retain a third party to ensure compliance. However, in a situation involving a close question of compliance by a sole-practitioner or small firm, it would be a prudent business practice to seek an advisory opinion from a third party that might preempt a later claim that the Rules were violated. Mid-size and larger firms with attorneys at varying levels should consider implementing strategies in addition to policies or procedures to “reasonably assure” compliance. Many firms have designated in-house counsel or an ethics committee that are available to field inquires. Firms also may rely on internal and external continuing legal education obligations to assist with the training of their attorneys.

THE DUTIES OF “SUPERVISING” ATTORNEYS

Rule 5.1(b) addresses the supervisory obligations of individual attorneys and requires that supervising attorneys “shall make reasonable efforts to ensure that the other lawyer’s conduct conforms to the Rules of Professional Conduct.” Under Rule 5.1(c), if the “other lawyer” engages in misconduct, the supervising lawyer shall only be responsible for such misconduct conduct if he “orders, or with knowledge of the specific conduct, ratifies the conduct involved” or if he with “comparable managerial authority” or “direct supervisory authority … knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

Again, Rule 5.1(b) does not define “reasonable efforts” or “reasonable remedial action” leaving those terms up to interpretation based on circumstances. The comments to Rule 5.1(b) and 5.1(c) point out that professional misconduct by an attorney might reveal a violation of Rule 5.1(b) even though there was no ratification or knowledge under Rule 5.1(c). In other words, a supervising attorney could fail to implement “reasonable efforts” to ensure compliance by the attorney whom he was supervising even though the supervising attorney did not know about or ratify that conduct when it occurred.

Nonetheless, attorneys should be mindful of their colleagues’ conduct and of the obligation under certain circumstances to provide reasonable assurance that such conduct complies with the Rules. Brooke D. Anthony

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