ANALYSIS: Rules 5.1, 5.2 & 5.3

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NEW RULES OF PROFESSIONAL CONDUCT

The new Rules of Professional Conduct, which take effect on Nov. 1, include, for the first time in California, disciplinary rules specifically addressing the duties of lawyers who manage or supervise other lawyers or legal staff as well as the duties of subordinate lawyers: Rules 5.1, 5.2 and 5.3. All lawyers, particularly those who manage or supervise others in the course of law practice, would be wise to familiarize themselves with these new rules.

Duties of Managers and Supervisors

Under the current rules, failure to supervise subordinate attorneys or legal staff may constitute a violation of the supervising attorney's obligation to provide competent representation. See Rule 3-110, Comment 1 (duty of competence includes "the duty to supervise the work of subordinate attorney and non-attorney employees or agents"). Consistent with the comment to Rule 3-110, attorneys who have sought to avoid discipline by blaming their staff or junior associates for conduct that violates an ethical obligation, like depositing checks to clients into the lawyer's account, communications with represented parties, or failure to perform legal services, have sometimes been disciplined for failure to supervise. However, such outcomes can potentially be avoided if the lawyer can show that lapses occurred despite appropriate supervision and, where appropriate, training has been provided.

In fashioning a new set of rules of professional conduct, the drafters and the California Supreme Court chose to follow the ABA Model Rules in elevating the duty to supervise to specific ethical rules, one for subordinate lawyers (Rule 5.1) and another for nonlegal staff (5.3).

The "supervisor rules," are divided into three distinct supervisory concepts: duties of management to establish procedures; duties of a direct supervising attorney; and circumstances giving rise to disciplinary liability for another person's conduct in violation of the ethical rules.

Management must establish policies and procedures for compliance with ethical rules: Under Rules 5.1 and 5.3, firm management must "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm comply with these rules and the State Bar Act."

Direct supervisor responsible for ensuring subordinate attorneys and staff comply with ethical rules: Any lawyer who has "direct supervisory authority over another lawyer" must make reasonable efforts to ensure that the supervised lawyer or staff person complies with the ethical rules. This rule generally follows the corresponding Model Rule, but contains the added the clarifying phrase "whether or not a member or employee of the same law firm." Thus, if you are directly supervising a lawyer or nonlawyer assistant who is not a member of the same firm as you, you nonetheless have an obligation to make reasonable efforts to ensure compliance. "Direct supervision" is not a defined term and whether a lawyer has direct supervisory authority of another lawyer is a question of fact. Rule 5.1, Comment 6. Because co-counseling arrangements are increasingly common, with large clients sometimes asking multiple firms to act as a single team, lawyers should consider documenting supervisory arrangements in writing in situations where ambiguity might exist. That is good practice in any event.

Responsibility for another's violation: Broadly speaking, the Rules of Professional Conduct do not impose vicarious disciplinary liability: each lawyer is independently responsible for his or her own compliance with the ethics rules. See 5.1, Comment 8. However, new Rule 5.1 imposes an independent ethical duty on managing and supervising attorneys for another lawyer's violation of the ethical rules where the first lawyer orders the violation by the second lawyer or ratifies the conduct knowing the relevant facts and specific conduct. Rule 5.1(c). This obligation is not limited to supervisors or management but applies to any lawyer who orders or ratifies another lawyer's violation of the ethical rules. And, a manager or direct supervisor must take remedial action to correct the consequences of a subordinate lawyer or staff person's ethical violation if he or she knows of the conduct at a time when the consequences of the violation can be avoided or mitigated. Every minor infraction, however, will not demand remedial action. As noted in Comment 6, the appropriateness of remedial action depends on the nature and seriousness of the misconduct and the nature and immediacy of the harm.

Duties of Subordinate Attorneys

Rule 5.2 addresses the ethical obligations of the supervised or subordinate lawyer. The baseline is that all lawyers must comply with the ethical rules notwithstanding that the lawyer acts at the direction of another lawyer or person: 'I was just following orders' will not generally be a defense. Rule 5.2(a). However, subsection (b) adds some nuance, stating that a "subordinate lawyer does not violate these rules or the State Bar Act if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty." Thus, faced with an ethical gray area, the subordinate lawyer may defer to the supervising lawyer's judgment with some degree of comfort that, if the supervising lawyer's choice proves incorrect, the subordinate will not be disciplined for his or her role in the conduct.

This rule not only accounts for the role of more experienced lawyers in guiding less experienced ones but also recognizes that, even when multiple lawyers work on a matter, someone must make the final call. As the comments to the ABA Model Rule 5.2 notes, "[o]therwise a consistent course of action or position could not be taken." However, the drafters of the California rule added this sentence to the comment to 5.2, which is not found in the ABA comments: "If the subordinate lawyer believes that the supervisor's proposed resolution of the question of professional duty would result in a violation of those rules or the State Bar Act, the subordinate is obligated to communicate his or her professional judgment regarding the matter to the supervisory lawyer." It is unclear whether by communicating his or her professional judgment to the supervisory lawyer, the subordinate lawyer has satisfied his or her own ethical duties and may then follow the course proposed by the supervisor even though the subordinate believes that the supervisor's proposed resolution will result in a violation of the rules. This bit of ambiguity in the new rules will presumably be ironed out as lawyers, courts and the State Bar begin to grapple with our New Rules of Professional Conduct.