By David C. Carr
Part of California’s new revised Rules of Professional Conduct is entirely new Rule 5.1(a) that addresses the responsibilities of a managing lawyer in a law firm. It provides,
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.
The asterisks mean these words are defined in new Rule 1.0.1 entitled “Terminology.” Rule 1.0.1 defines a “law firm” as
‘Firm’ or ‘law firm’ means a partnership; a professional law corporation; a lawyer acting as a sole proprietorship; an association authorized to practice law; or lawyers employed in a legal services organization or in the legal department, division or office of a corporation, of a government organization, or of another organization.
That definition includes a lawyer who is acting as a true solo lawyer with no employees. So what relevance does Rule 5.1 have for the solo lawyer?
On its face Rule 5.1 seems exclusively devoted to addressing the lawyer’s responsibilities in managing other lawyers. But a closer look reveals that rule 5.1 applies to the solo lawyer as well. A solo lawyer is still a law firm that has to be managed ethically. Put another way management is not something that exclusively occurs between you and others. you must also manage yourself.
Part of Rule 5.1’s significance is the fact it is entirely new in California. Prior to November 1 , 2018, the duty of management was considered integral to the duty of competence articulated in former Rule 3-110(A), so integral that a separate rule of professional conduct was not considered necessary: the duty of supervision is referred to in the comment to the former role. Breaking out the duty to ethically manage a law firm of any size emphasizes that duty; one of the virtues of our new set of Rules, as with the ABA Model Rules, is shining a bright light on concepts that were implicit or contained in case law by making them discipline rules.
Many lawyers, while they are good lawyers and good people, are not particularly good at the law practice management side of lawyering. Unfortunately, at some level, law practice management and legal ethics are dealing with the same issues, so poor management practices almost inevitably lead to ethical issues. The value of Rule 5.1 for the solo practitioner is highlighting that sound management practices are necessary to practice ethically, that application of ethical rules regarding marketing and advertising, competent and diligent representation, regular and timely communication with clients, proper handling of client funds and many other rules requires the same type of management organization and self-discipline no matter what size the law firm is.
A 2017 State Bar survey indicated that 20.8% of California lawyers practice as solos (http://www.calbar.ca.gov/Portals/0/documents/reports/ORIA/Survey-2017.pdf.) While the small response rate to this voluntary survey may cast doubt on that number, there is no doubt most of the lawyers disciplined by the State Bar have historically been lawyers practicing solo. Some have even accused the State Bar of targeting solo lawyers for discipline, an accusation that ignores the reality that the discipline system is largely driven by complaints. Solo practitioners are at special risk because they lack the support systems that lawyers in larger organizations possess.
Lawyers at all level of practice need to develop a management culture that prioritizes ethics. That is part of the lesson of new Rule 5.1 and solo lawyers, given the risks inherent in their practice environment, need to pay heed to that lesson. Even minor discipline can be a major disaster for a lawyer struggling as a solo.
David C. Carr is an attorney at law.
**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.**