By Mallory Holt
Wingert, Grebing, Brubaker & Juskie, LLP
For a new lawyer, many would likely agree there are innumerable benefits to obtaining an associate position within an established law firm. Among those, of course, is the opportunity to receive the mentorship of experienced attorneys to help guide the continued development of your legal skills.
At the same time, however, associate attorneys remain responsible for their own compliance with the California Rules of Professional Conduct and must not simply assume the infallibility of their mentors’ determinations where a violation could result.
California Rules of Professional Conduct [CRPC], rule 5.2 provides:
(a) A lawyer shall comply with these rules and the State Bar Act notwithstanding that the lawyer acts at the direction of another lawyer or other person.1
(b) 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.
Under this rule, “[a] subordinate lawyer is permitted, but not required, to act in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” (COPRAC Form. Opn. 2020-201, at p. 4.2)
Thus, while the general rule is that all lawyers must comply with the ethical rules notwithstanding any supervisor-subordinate relationship, subdivision (b) of CRPC, rule 5.2 adds some nuance to the requirement. If faced with an ethical gray area, the subordinate lawyer may choose to defer to the supervising lawyer’s judgment without fear of discipline in the event that determination is ultimately incorrect – qualified, however, by reasonableness.
For purposes of the CRPC, “‘Reasonable’ or ‘reasonably’ when used in relation to conduct by a lawyer means the conduct of a reasonably prudent and competent lawyer.” (CRPC, rule 1.0(h) [emphasis added].) The question then necessarily arises of whose reasonableness is at issue in CRPC, rule 5.2 – the supervisory lawyer, or the subordinate lawyer – and what, if anything, must a subordinate lawyer do to independently determine whether the resolution proposed by the supervisory lawyer is in fact reasonable?
CRPC, rule 5.2, which has been in effect since 2018 and is modeled after the American Bar Association’s Model Rule 5.2, had no corresponding counterpart in the prior version of California’s rules of professional conduct. In connection with the adoption of rule 5.2, the California Commission for the Revision of the Rules of Professional Conduct (“Commission”) reasoned, “Current rule 3-110 includes a duty to supervise but says nothing about the subordinate lawyer’s duties. Proposed rule 5.2 addresses this omission by stating a subordinate lawyer generally cannot defend a disciplinary charge by blaming the supervisor. Although California’s current rules have no equivalent to proposed rule 5.2, there appears to be no conflict with the proposed rule and current California law in that there is no known California authority that permits a subordinate lawyer to defend a disciplinary charge based on clearly improper directions from a senior lawyer.”3
Notably, while CRPC, rule 5.2 adopts the substance of Model Rule 5.2, the California rule includes different Comments. For instance, CRPC, rule 5.2 omits in its entirety Comment 1 to Model Rule 5.2, providing:
[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document’s frivolous character.4
It is unclear whether the omission of such language from the Comments to CRPC, rule 5.2 indicates the absence of a potential defense by the subordinate lawyer based solely on the lack of actual knowledge of the facts constituting a violation.5 It may instead be the case that this language was deemed to fall within the Commission’s recommendation of “editing the Model Rule Comments to eliminate material that is practice guidance or that merely repeats or describes the Rule content.”6
Other states have either adopted or entertained modified versions of Model Rule 5.2, expressly addressing additional efforts that may or must be undertaken by the subordinate lawyer. For instance, New York’s Rules of Professional Conduct, rule 5.2 supplements Comment 2 to further provide: “To evaluate the supervisor’s conclusion that the question is arguable and the supervisor’s resolution of it is reasonable in light of applicable law, it is advisable that the subordinate lawyer undertake research, consult with a designated senior partner or special committee, if any (see Rule 5.1, Comment [3]), or use other appropriate means.”
While not ultimately adopted, it appears New Jersey’s committee reports at one time reflected consideration of an amendment to its Rules of Professional Conduct, rule 5.2 to add paragraph (c), stating: “A lawyer does not violate the Rules of Professional Conduct if that lawyer presents an issue of ethical conduct in good faith to firm ethics counsel or independent counsel on an arguable question of professional duty and, in good faith, acts in accordance with the advice received in response.”7
Although not included in CRPC, rule 5.2 itself, similar measures have been suggested by the State Bar of California Standing Committee on Professional Responsibility and Conduct (“COPRAC”). (See COPRAC Form. Opn. 2021-206, at p. 10 [addressing supervising lawyer impairment, suggesting “[t]he subordinate lawyer may consider communicating with other supervisory lawyers within the firm about these issues. Depending on the circumstances, such other lawyers may include, among others, in-house ethics counsel, members of the firm’s executive committee or risk management committee, a partner in charge of the client matter(s) at issue, or, in smaller or less structured firms, any senior colleague whom the lawyer trusts to take a constructive view of the problem.”].)
The Comment to CRPC, rule 5.2 appears to incorporate, for the most part, the general substance of Comment 2 to Model Rule 5.28 (albeit with some modified wording9), providing guidance as to when a subordinate lawyer can be guided by a supervisory lawyer’s determination involving professional responsibilities. However, the Comment to CRPC, rule 5.2 was supplemented with the language bolded below, which has no counterpart in Model Rule 5.2:
[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to the lawyers’ responsibilities under these rules or the State Bar Act and the question can reasonably* be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. Accordingly, the subordinate lawyer must comply with his or her obligations under paragraph (a). If the question reasonably* can be answered more than one way, the supervisory lawyer may assume responsibility for determining which of the reasonable* alternatives to select, and the subordinate may be guided accordingly. If 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.
Interpreting this additional requirement, COPRAC has opined that subordinate lawyers do not necessarily satisfy their ethical duties upon communicating their professional judgment to the supervisory lawyer, and may be obligated to pursue further measures, including as appropriate, communicating with other supervisory lawyers in the firm and in some instances contacting the client directly. (See COPRAC Form. Opn. 2021-206, at pp. 10-11.)
Since the adoption of CRPC, rule 5.2, COPRAC has issued several Formal Opinions touching upon the rule in connection with issues relating to data breaches; a lawyer’s departure from a law firm; and colleague impairment. (COPRAC Form. Opns. 2020-201, 2020-203, 2021-206.) As guided by those Opinions, “[a]ll attorneys in a law firm owe duties – including ethical duties – to each of the firm’s clients.” (COPRAC Form. Opn. 2020-201, at p. 3.)
“[U]nder rule 5.2, subordinate lawyers have independent ethical obligations to protect confidential client information as part of their duty of competence. Thus, subordinate lawyers should not blindly follow firm technological rules that are unreasonable or rely on the absence of a firm rule where there should be one.” (COPRAC Form. Opn. 2020-203, at p. 6.) “[I]f the ethical violation is ongoing, the subordinate has an obligation to take reasonable remedial measures to try to correct the violation and to protect the client from harm.” (COPRAC Form. Opn. 2021-206, at p. 10.)
While future cases and ethics opinions are likely to clarify what CRPC, rule 5.2 specifically requires of subordinate attorneys in various circumstances, it nonetheless seems clear that associate attorneys would do well not only to stay informed of their professional obligations, but moreover, to undertake whatever efforts and consult whatever resources are required to satisfy themselves of the reasonableness of their supervising lawyer’s case handling determinations where a violation could potentially result.