Apr 3 2017

Avoiding Ethical Issues When Managing and Supervising Lawyers and Non-Lawyers under the Massachusetts Rules of Professional Conduct

Managing, supervising and subordinate lawyers have overlapping but distinct responsibilities with respect to each other and with regards to non-lawyer assistants under Massachusetts Rules of Professional Conduct 5.1-5.3. Understanding the requirements of these rules and how they interact is key to avoiding an ethical issue that could lead to a disciplinary complaint. 

Managing and Supervising Lawyers

Rule 5.1 details the responsibilities of managing and supervising lawyers:

RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS AND SUPERVISORY LAWYERS

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall 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.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

As detailed in the comments to Rule 5.1, paragraph (a) applies to lawyers who have managerial authority of a firm, such as equity or managing partners, and requires those lawyers to take reasonable efforts to establish policies and procedures ensuring compliance by all attorneys at the firm with the Rules of Professional Conduct. These policies and procedures need address, among other issues, detecting and resolving conflicts of interest, tracking statute of limitations and other important deadlines, the proper handling of client funds, and ensuring adequate supervision of less experienced lawyers. Such policies and procedures should be proportional to the size of the firm, and tailored to the lawyers’ practice and the frequency with which particular ethical issues arise. For example, an estate planning firm might face a particular ethical issue every week while a personal injury firm could encounter the same issue only in rare instances. Periodic review of policies and procedures, auditing of compliance, and continuing legal education in ethics should be implemented into an overall plan by firm management.

Paragraph (b) applies to attorneys who have direct supervisory authority over other lawyers at a firm. Thus, this section could apply not only to a partner but also an associate supervising another lawyer.

Paragraph (c) makes clear that an attorney can be held responsible for the misconduct of another lawyer where the attorney orders the conduct of another lawyer or ratifies the conduct of another lawyer. Likewise, an attorney can be held responsible for the misconduct of another lawyer where the attorney has management or supervisory responsibility for another lawyer, learns of the conduct at a time when the consequences can be avoided or mitigated, and fails to take corrective or remedial action. Partners are deemed to have at least indirect responsibility for all work being done at the firm. Any corrective or remedial action taken by a managing or supervising attorney does not relieve the subordinate lawyer from responsibility for also taking corrective or remedial action. See Rule 8.4(a) (a lawyer must not “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another”).

Discipline for violating Rule 5.1 often accompanies charges for other misconduct. See, e.g., Matter of Newman, 31 Mass. Att'y Disc. R. ___ (2015) (four month suspension where lawyer failed to correct or withdraw assertions made by his associate during litigation that were later discovered to be untrue; lawyer knowingly made false statements in connection with the appeal of the same matter); Matter of Gleason, 28 Mass. Att'y Disc. R. 352 (2012) (public reprimand for lawyer who failed to put into place adequate measures to ensure that attorneys at firm adhered to Rules of Professional Conduct, and failed to supervise attorney for whom lawyer had direct supervisory responsibility; other misconduct involved); Admonition 10-19 (lawyer failed to ensure that firm had measures in place to detect and resolve conflicts of interest; conflict of interest later occurred).

While Rules 5.1 and 8.4(a) establish an attorney’s responsibility for another lawyer’s conduct under the Rules of Professional Conduct, they do not limit an attorney’s potential civil or criminal liability for the acts or omissions of another member of the firm.

Subordinate Lawyers

Rule 5.2 details the responsibilities of subordinate lawyers:

RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE LAWYER

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

Rule 5.2 establishes that a lawyer is not relieved from responsibility for complying with the Rules of Professional Conduct even when s/he acts at the direction of a supervisor. However, the comments to Rule 5.2 note that whether the lawyer acted at the direction of a supervisor may be relevant in determining if the lawyer had the knowledge required to violate a particular rule.

Where a course of conduct presents an ethical question that is reasonably arguable, the supervisor may make and assume responsibility for the decision. For example, where a supervising lawyer reasonably resolves a potential conflict of interest, a subordinate lawyer would be protected if that resolution is later challenged. However, where the question is not reasonably arguable, both the supervising and subordinate lawyer share responsibility.

Non-lawyer Assistants

Rule 5.3 details the responsibilities of a lawyer with respect to non-lawyer assistants:

RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) 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; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Just as managing and supervising lawyers must take reasonable steps to ensure that subordinate lawyers comply with the Rules of Professional Conduct, managing and supervising lawyers must also take reasonable efforts to ensure that non-lawyer assistants’ (including, but not limited to, secretaries, investigators, law students, and paralegals’) conduct is compatible with the Rules of Professional Conduct, and managing lawyers must establish policies and procedures to that effect. Lawyers must provide their non-lawyer assistants with appropriate instruction and supervision concerning the ethical aspects of their employment. The comments to Rule 5.3 emphasize particularly the need to train and ensure non-lawyer assistants’ compliance with those rules governing client confidentiality.

Non-lawyer assistants outside of a firm, such as a document management company or an internet service retained to store client information, must be reasonably instructed and monitored to ensure that their work is compatible with the lawyer’s professional obligations. Any time a lawyer enters into a contract with a non-lawyer assistant outside of the firm, attention should be paid to including provisions in the contract aimed at compliance with relevant provisions of the Rules of Professional Conduct.

A lawyer supervising a non-lawyer assistant is responsible for a non-lawyer assistant’s conduct to the extent the lawyer orders or ratifies the conduct. Managing and supervising lawyers must take steps to mitigate or remediate the consequences of a non-lawyer assistant’s conduct where possible.

Conclusion

Lawyers should take steps to ensure that other members of their firm, both lawyers and non-lawyers alike, are complying with the Rules of Professional Conduct. Managing attorneys should seek to implement policies and procedures to make complying with the Rules of Professional Conduct an integrated part of internal and external firm operations, regularly monitor progress, encourage further legal education on ethical issues, and foster a culture of compliance. Both managing and supervising attorneys should be mindful of their subordinates’ compliance with the Rules of Professional Conduct, and take steps to remediate or mitigate lapses when they occur.

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