By Tim Casey
The start of a new year offers an opportunity to take stock of where we’ve been over the past twelve months and where we’d like to be at the end of the new year. With 2020 behind us, we hope for a better year in 2021. To be sure, one place we don’t want to be in 2021 is on the wrong side of a disciplinary action!
Is a lawyer subject to discipline for the conduct of another lawyer? Generally speaking, a lawyer is not subject to discipline for the unethical conduct of another lawyer. But, under California’s Rules of Professional Conduct, lawyers in a managerial or supervisory capacity may be subject to discipline for a failure to properly manage a firm or supervise subordinate lawyers.
California Rule of Professional Conduct 5.1 creates an ethical duty for managing or supervising attorneys in several scenarios. First, a lawyer with managerial authority must “make reasonable efforts” to ensure the firm has in effect policies and procedures to provide assurance that the firm and its lawyers comply with ethical rules. Those “policies and procedures” should be aimed at avoiding conflicts of interest, calendaring dates to ensure timely filings, properly accounting for client funds and property, or training and supervising new lawyers. (See, Comment 1, Cal. R. Prof’l Conduct 5.1.) Lawyers with supervisory authority must make reasonable effort to ensure subordinate lawyers comply with ethical rules. (Cal. R. Prof’l Conduct 5.1(b).)
In addition, Rule 5.1 imposes responsibility for supervising attorneys.1 A supervising attorney will be subject to discipline for failure to supervise when: (1) the supervising attorney orders or ratifies the unethical conduct of the subordinate lawyer; or (2) the supervising attorney knows of the unethical behavior and “fails to take reasonable remedial action.” (Cal. R. Prof’l Conduct 5.1(c)(2).)
New Rule 5.1 reads as follows:
- A lawyer who individually or together with other lawyers possesses 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* comply with these rules and the State Bar Act.
- A lawyer having direct supervisory authority over another lawyer, whether or not a member or employee of the same law firm,* shall make reasonable* efforts to ensure that the other lawyer complies with these rules and the State Bar Act.
- A lawyer shall be responsible for another lawyer’s violation of these rules and the State Bar Act if:
(1) the lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved; or
(2) the lawyer, individually or together with other lawyers, possesses managerial authority in the law firm* in which the other lawyer practices, or has direct supervisory authority over the other lawyer, whether or not a member or employee of the same law firm,* and knows* of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable* remedial action.2
So, does that mean subordinate lawyers get a pass? What if a subordinate lawyer violates a rule of professional conduct at the direction of a supervisor? California Rule of Professional Conduct 5.2 addresses the responsibilities of the subordinate lawyer. Rule 5.2 mandates that subordinate lawyers are responsible for their own actions, with one caveat. Rule 5.2(b) creates a safe harbor for the subordinate lawyer when there is an “arguable question of professional duty.” Thus, if there is an arguable question – one which “reasonably can be answered more than one way”- the subordinate lawyer will not be subject to discipline for following the guidance of the supervising attorney. (Comment to Rule 5.2.) Where the subordinate and the supervising lawyer disagree about the resolution of the arguable question of professional duty, the subordinate must “communicate his or her professional judgment regarding the matter to the supervisory lawyer.”
January is a good time for resolutions. One important resolution should be a review of the firm’s policies and procedures to ensure all lawyers – both supervisors and subordinates – understand and meet their ethical duties.3