10 A Lawyer’s Obligation to Supervise Their Subordinates
Partners in law firms and other lawyers with “managerial authority” over other employees at a law firm have a duty to make “reasonable efforts” to ensure all lawyers (their subordinates) conform with the rules of professional responsibility. Failure to do so can lead to discipline. ABA Model Rules 5.1(a) and (b) cover a managing attorney’s responsibilities.
The ABA does not define reasonable efforts but recommends that lawyers have internal policies that ensure that all lawyers in the firm conform to the rules. This includes
- designing policies to detect and resolve conflicts of interest
- identifying dates by which actions must be taken in pending matters
- accounting for client funds and property
- ensuring inexperienced lawyers and staff are properly supervised
- billing measures to prevent overbilling
- participation in continuing legal education (CLE)
Thus, a good employee onboarding system is a must. Here, new lawyers can learn more about the law firm culture, the importance of following the ethical rules, and whom to contact if there is an ethical issue. Establishing a culture in which a law firm takes ethical issues seriously is a must. That way, new and junior lawyers understand the importance of following ethical standards.
A lawyer is always responsible for their own misconduct. There are three situations in which a lawyer may be responsible for another lawyer’s misconduct [ABA Model Rule 5.1(c)]:
- When a managing attorney orders the misconduct
- When a managing attorney with knowledge of the specific misconduct ratifies it
- When a managing attorney learns of conduct at a time when its consequences could have been avoided or mitigated and does nothing.
In each of the situations below, identify if the supervisory rules under ABA Model Rule 5.1 have been violated.
- A managing attorney orders her associate to follow ambulances around town and to hand out the firm’s business cards whenever an ambulance drops a patient off at the hospital.
- A managing attorney learns that the last three clients the firm signed were because an associate at the firm solicited clients from a hospital. In desperate need to bring in clients, the associate went into the local hospital and approached the Information Desk to leave business cards. The volunteer on staff then asked the attorney if he would like to talk to patients in the ICU – where the most critically injured patients were cared for. The associate said yes. After visiting the ICU and speaking with patients, the associate was able to sign on three new clients. The managing attorney continues to represent them.
- A managing attorney learns that a few associates plan to visit a nursing home nearby to solicit clients and does nothing.
Complete the following activity to confirm whether the rules have been violated.