By Edward J. McIntyre
We tend to think of our obligations under the Rules of Professional Conduct as personal duties specific to our own conduct. And, indeed, the rules prescribe permissible conduct for California lawyers. Those obligations, however, stretch beyond what each of us may or must do and say.
Rules 5.1 and 5.3 establish obligations of lawyers with managerial or supervisory authority to make reasonable efforts to ensure that all lawyers in the firm, or individuals whom they supervise, comply with the rules and State Bar Act. Similarly, they must make reasonable efforts to ensure that nonlawyer employees’ conduct is compatible with the professional obligations of the lawyer. Critically, these two rules also make lawyers responsible for another lawyer’s or nonlawyer’s conduct in certain circumstances.
Rule 5.1(a) requires that a lawyer who, either individually or with other lawyers, has managerial authority in a law firm take reasonable efforts to ensure that the firm itself has in effect measures that give reasonable assurance all firm lawyers comply with the rules and the Act. A few obvious examples include procedures to identify and resolve conflicts of interest; calendaring systems to identify when action must be taken in pending matters; systems to account for client funds; and procedures to ensure that inexperienced lawyers have appropriate instruction and supervision. Each of us can think of many more. Necessarily, how any firm’s managers carry out this responsibility will depend on a firm’s size, structure, the nature of its practices, the number of offices, and jurisdictions in which the firm’s lawyers practice.
When it comes to nonlawyer personnel, the firm must have measures in effect to assure that all nonlawyers’ conduct is compatible with the professional obligations of the lawyers. Nonlawyers for this rule includes both employees and independent contractors and this rule requires that they receive appropriate instruction and supervision. One clear example is policies and procedures to ensure that nonlawyer employees know lawyers’ obligations of client confidentiality — including its scope and breadth —under rule 1.6 and Business and Professions Code section 6068, subdivision (e).
If a lawyer has direct supervisory authority over another lawyer — whether a member or employee of the same firm or not — rule 5.1(b) requires that lawyer to make reasonable efforts to ensure that the other lawyer complies with the rules and the Act. Similarly, under rule 5.3(b), if a lawyer supervises nonlawyer personnel — whether or not an employee of the lawyer’s firm — the lawyer must make reasonable efforts to make sure that the nonlawyer’s conduct is compatible with the lawyer’s own professional obligations.
But what about responsibility for another lawyer or nonlawyer employee’s conduct? Rule 5.1(c) makes a lawyer responsible for another lawyer’s violation of the rules or the Act if the lawyer (1) orders the conduct; or (2) if the lawyer knows the relevant facts and ratifies the conduct; or (3) if the lawyer is either a manager or supervisor of the other lawyer — again whether or nor a member or employee of the lawyer’s firm — and knows of the conduct when its consequences can be avoided or mitigated, but fails to take reasonable remedial action.
Similarly, under rule 5.3.1(c), when it comes to the conduct of a nonlawyer, the lawyer is responsible for the nonlawyer’s conduct if that nonlawyer’s conduct would be a violation of the rules or the Act if the lawyer herself or himself engaged in it, and the lawyer orders, ratifies or, when the lawyer has a managerial or supervisory role in relation to the nonlawyer, knows about the misconduct and fails to take reasonable remedial action when its consequences can be voided or mitigated.
What might fall within this vicarious disciplinary liability for a managing or supervision lawyer? Assume an associate — or co-counsel whom a lawyer supervises — writes a brief and argues a motion. Then, after the fact, the supervising lawyer learns that the associate or co-counsel did not disclose legal authority to the court that the associate or co-counsel knew was directly adverse to the client’s position, and that opposing lawyer had not discovered or had not told the court.
Rule 3.3(a)(2) requires disclosure to a tribunal authority directly adverse to a client’s position, which it appears the associate or co-counsel violated. In the circumstances, reasonable remedial measures for the supervisor might include the supervisor requiring the associate or co-counsel to inform, or the supervisor herself or himself informing, the court of that authority while the matter is still pending so that the other lawyer’s misconduct can be ameliorated, and the court does not decide the motion without having that authority before it.
Thus, rules 5.1 and 5.3 requires each of us to exercise greater vigilance, not only for what we do or say, but also for what others in our firms or associated with them are doing. We’re not all managers, but likely at some time or other each of us supervises some other lawyer or non-lawyer in relation to our representation of our clients. These rules now require that we all have additional responsibility to protect our clients, the public and the administration of justice and, ultimately, our profession itself.