Some of the most difficult ethical issues arise not out of an attorney’s own conduct, but rather out of instances where an attorney observes unethical behavior by another attorney. In such situations, the question of whether any action is necessary to comply with the ethical rules often involves a careful consideration of the facts and the relevant rules.
This issue is further complicated in the law firm environment, where there is typically a clear demarcation between partners, who act in a supervisory capacity, and associates, who generally act at the behest of partners in a subordinate role. As discussed below, the dynamic between partners and associates can lead to tricky ethical questions.
Partners rely on associates to handle legal work independently, often without the partner double-checking each and every task performed by the associate. Indeed, with the constant pressure to reduce the costs of legal services, partners often will try to source as much work as possible to associates to adhere to budgetary expectations.
In addition to limiting the cost of legal services, giving additional responsibility to associates can be very positive as a training tool for associates. However, in many jurisdictions, the ethical rules set forth explicit requirements for attorneys in a supervisory role. Indeed, Rule 5.1 of the American Bar Association’s Model Rules of Professional Conduct provides that “[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.” Model Rule 5.1 further sets forth circumstances upon which one lawyer will be “responsible” for another lawyer’s ethical violations.
The California Rules of Professional Conduct may not as clearly set forth the duties of a supervisory attorney, but they nonetheless impose a similar duty. Rule 3-110 addresses an attorney’s duty to act competently. The discussion to that rule makes clear that “[t]he duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and non-attorney employees or agents.”
These rules inject an ethical component into the relationship between partners and associates. Partners who permit associates to proceed on matters without any supervision at all thus do so at their own risk for a potential grievance.
However, the answer is not to micromanage or to prohibit associates from taking active roles. Instead, supervising attorneys may want to ensure, for example, that they are copied on relevant correspondence and that they are consulted with respect to strategic decisions relating to the representation.
It is also helpful for supervising attorneys to convey their expectations to associates both when the associates start with the firm and at the beginning of each representation. It is not always obvious to associates what decisions should involve the partner for any given matter. The goal should be to involve partners on key decisions so that strategy and tactics can be adjusted before it is too late.
While partners may have a duty to supervise, it does not mean that junior attorneys are off the hook. Indeed, under Rule 3-110(c), inexperienced attorneys may be required to consult with partners or take other steps where they lack sufficient learning and skill to perform a legal service. Thus, even if the partner could be faulted for delegating a task to an associate that is outside of the associate’s capabilities, the associate nonetheless may have an independent responsibility to ensure that she or he can perform the task.
Sometimes, junior attorneys assume that they face no ethical liability for tasks or representations that they have undertaken at the direction of a senior attorney. However, junior associates are not immune. Indeed, Rule 5.2 of the Model Rules of Professional Conduct specifies that “[a] lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” Thus, in states that have adopted some form of Rule 5.2, the ethical rules make clear that an associate cannot simply deflect responsibility for errors to the partner.
In addition, there may be situations where a junior attorney has disclosure obligations after learning of possible errors or omissions by a more senior attorney. Indeed, all attorneys within a law firm have an obligation to clients to ensure that the clients are being well-represented. If an attorney believes that another attorney may have failed to abide by the applicable ethical rules, the first attorney may have an obligation to disclose such facts to others within the firm (such as the general counsel) to determine whether there are reporting obligations to the client or to the bar.
Further, attorneys often have an obligation in applying for or renewing insurance coverage to disclose knowledge of claims or potential claims. This duty of disclosure could encompass knowledge that an error or potential error was made by another attorney. This complicated issue sometimes arises in the context of an associate who is aware of a partner’s malfeasance, but unaware as to whether the partner has disclosed the issue to the firm or the insurance carrier.
In those circumstances, an associate who fails to disclose to the insurance carrier that she or he is aware of facts or circumstances that might give rise to a claim could find herself or himself without insurance coverage if they are ever sued in connection with the error, even when the error is one committed by their supervising partner.
Some associates mistakenly believe that it is not their obligation to disclose. It certainly can be an uncomfortable situation when a junior associate feels that they are “tattling” on the partner to management. But those associates should know that they are increasing the risk not only to the law firm, but also to themselves.
Just as important as disclosing these issues is identifying to whom disclosure should be made. In some areas, there is a risk that disclosures to anyone other than the firm’s general counsel could risk a waiver of privilege. Therefore, it is important in disclosing material facts to confirm the proper party at the law firm to whom disclosure should be made.
Law firms should strive to create a culture that supports disclosure and encourages their attorneys to disclose potential issues. Attorneys attempting to handle potential errors on their own or ignoring misconduct by other attorneys may create significant risk for themselves and for the firm.