By Timothy Casey
Are you meeting your ethical obligation of supervision? Do the policies and procedures in your firm meet the requirements defined in the new California Rules of Professional Conduct? How does your firm ensure that new lawyers and nonlawyers comply with ethical standards?
The newly revised California Rules of Professional Conduct include several provisions directed to an attorney’s duty of supervision. The old California Rules of Professional Conduct made reference to a duty of supervision in the discussion of attorney competence,[1] and a number of cases have noted the duty of supervision.[2] The new rules significantly expand and explain the obligations for supervising attorneys. Specifically, the new rules clarify that attorneys in supervisory or managerial positions must adopt and maintain firm policies and procedures.[3] In addition, the rules note that the duty of supervision extends to nonlawyers who “act for the lawyer.”[4]
Rule 5.1 addresses the Responsibilities of Managerial and Supervisory Lawyers. The new rule explicitly describes a lawyer’s responsibility to maintain firm policies and procedures that ensure that both subordinate lawyers and staff comply with ethical standards. Rule 5.1 (a) states:
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.[5]
The comments provide specific guidance on the type of policies contemplated by the new rule. At minimum, the firm should have in place a system for detecting conflicts of interest, a calendaring system to ensure attorneys are timely in meeting client obligations, accounting policies that ensure client funds and property are properly separated and maintained, and policies that ensure proper supervision for newer attorneys.
Paragraph (a) [of Rule 5.1] requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed, for example, to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised.[6]
Depending on the size and structure of the firm, the obligations contemplated in Rule 5.1 may be satisfied if the firm has a designated partner or committee to review and implement policies and procedures.[7]
The new rule extends to public agencies, with particular attention to the assignment of an appropriate workload to subordinate lawyers as well as the training and supervision of new lawyers.[8] Comment 4 to Rule 5.1 refers to the Guidelines on Indigent Defense Services Delivery Systems, a report published by the State Bar of California that addressed the quality and consistency of legal services for indigent clients.[9]
Finally, the new rules explicitly state the attorney’s supervisory obligations extend to nonlawyers working for a law firm. Rule 5.3, which addresses Responsibilities Regarding Nonlawyer Assistants, requires that a supervising or managing attorney “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer…”[10] The Comment to Rule 5.3 directs that a lawyer “must give such assistants appropriate instruction and supervision concerning all ethical aspects of their employment.”[11] Moreover, the attorney’s duty to supervise applies broadly and covers “nonlawyer personnel, including secretaries, investigators, law student interns, and paraprofessionals … whether employees or independent contractors [who] act for the lawyer in rendition of the lawyer’s professional services.”[12]
In sum, California’s new Rules of Professional Conduct include significant revisions to the attorney’s ethical obligations to both lawyers and nonlawyers working under the attorney’s supervision. The rules contemplate that lawyers with supervisory authority must take responsibility for ethical compliance by subordinates, including the development and maintenance of policies and procedures to ensure ethical compliance.
With the changes to California’s ethical rules, it may be a good time to review the supervisory responsibilities, policies, and procedures at your firm.
[1] California Rules of Prof’l Coduct, Rule 3-110 (1992).
[2] See, e.g., Waysman v. State Bar (1986) 41 Cal.3d 452; Trousil v. State Bar (1985) 38 Cal.3d 337, 342; Palomo v. State Bar (1984) 36 Cal.3d 785; Crane v. State Bar (1981) 30 Cal.3d 117, 122; Black v. State Bar (1972) 7 Cal.3d 676, 692; Vaughn v. State Bar (1972) 6 Cal.3d 847, 857-858).
[3] California R. of Prof ‘ l Conduct [CRPC], Rule 5.1 (2018).
[4] CRPC, Rule 5.3 (2018).
[5] CRPC, Rule 5.1 (2018).
[6] CRPC, Rule 5.1, Comment 1 (2018).
[7] CRPC, Rule 5.1, Comment 3 (2018).
[8] CRPC, Rule 5.1, Comment 4 (2018).
[9] See, State Bar of California, Guidelines on Indigent Defense Services Delivery Systems (2006), available at https://www.calbar.ca.gov.portals.documents.ethics.Indigent_Defense_Guidelines_2006.pdf (last accessed September 22, 2019).
[10] CRPC, Rule 5.3(a) (2018).
[11] CRPC, Rule 5.3, Comment (2018).
[12] CRPC, Rule 5.3, Comment (2018).
Timothy Casey is a Professor at California Western School of Law.