Back in 2013, Ethics in Brief reported on the decision in Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522 where an associate, working under supervision of a senior attorney, failed in her attempt to dismiss a malicious prosecution action. This publication noted an important statement from the Court of Appeal:
We recognize that an associate attorney is not in the same position as an attorney associating into a case. There is a clear imbalance of power between an often younger associate and an older partner or supervisor, and situations may arise where an associate is put into a difficult position by questioning a more experienced attorney’s choices. Nonetheless, however every attorney admitted to practice in this state has independent duties that are not reduced or eliminated because a superior has directed a certain course of action. (See Bus. & Prof. Code, § 6068.) Thus, the fact that she was following a superior’s instructions is not a valid defense to malicious prosecution.
(Id. at p. 1546; see, https://www.sdcba.org/index.cfm?pg=Ethics-In-Brief-12-16-13.)
Proposed Rules of Professional Conduct, Rule 5.2 codifies these responsibilities and confirms that, regardless of the vicarious responsibility imposed on a managing or supervising lawyer by proposed Rule 5.1, a subordinate lawyer has an independent duty to comply with the Rules of Professional Conduct. The proposed rule further provides that “[i]f the subordinate lawyer believes that the supervisor’s proposed resolution of the question of professional duty would result in a violation of these rules or the State Bar Act, the subordinate is obligated to communicate his or her professional judgment regarding the matter to the supervisory lawyer.” Proposed Cal. Rules of Professional Conduct R. 5.2, cmt.
Proposed Rule 5.2 does provide an exception under subdivision (b) providing 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 responsibility.” But, “reasonable resolution of an arguable question” does not provide blanket immunity. For instance, the comments to ABA Rule 5.2 provides that “if a question arises whether the interests of two clients conflict under Rule 1.7, the supervisor’s reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.” ABA Model Rule, cmt [2].
While the complex question of whether a conflict between two clients’ interests may be subject to the exception, existing California law and courts and commentators interpreting the Rule have plainly found the exception inapplicable to conduct involving misleading conduct or where the subordinate should simply know better. (In re Maloney & Virsik (Rev.Dept. 2005) 4 Cal. State Bar Ct.Rptr. 774, 786-797 [associate attorney disciplined along with supervising partner for misrepresentations, misleading the court and failing to obey a court order]; In re Filosa (S.D.N.Y. 2013) 976 F. Supp. 2d 460, 466 [“Even assuming that Respondent was just following orders handed down by [supervising attorney], it cannot be said that [supervising attorney’s] resolution of these questions—namely, whether to serve the misleading expert report, whether to inform opposing counsel of the invalid assumptions contained therein, and whether to rely on the expert report in the course of settlement negotiations—were even remotely reasonable.”]; Roy D. Simon, Simon’s Rules of Professional Conduct 893 (2012) [discussing Rule 5.2(b): “This defense will not work if the actions of the subordinate attorney were plainly unethical … but the subordinate simply did not realize it.”])
Whether or not Rule 5.2 is approved by the California Supreme Court, it is clear that subordinate attorneys’ are limited in their reliance on supervising attorneys in practice.
Andrew Servais (aservais@wingertlaw.com) is a partner with Wingert, Grebing, Brubaker & Juskie, LLP.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**