by Jason Moberly Caruso
I’m occasionally asked for advice by a new or soon-to-be lawyer (when they’re feeling charitable, or as a minority report to better advice received from others). Among other things, a seeker of my advice is in danger of receiving a less articulate version of the following: “Try to remember that ‘associate’ doesn’t mean ‘cog.’ You have been hired to exercise your judgment, and a great new lawyer manages up as well as they are managed down. You are already well-equipped to have good ideas, and to call out bad ones.”
There Is No Nuremberg Defense
As ethics is concerned in particular, this advice has reliable support. It reflects the now not-so-new Rules of Professional Conduct (the “Rules”), which state their expectations of “subordinate” lawyers at Rule 5.2(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.”
Rule 5.2 is complemented by the well-established duty of supervisory attorneys to ensure their subordinates comply with the Rules of Professional Conduct and other applicable law. See Rule 5.1; Former Rule 3-110; see also Trousil v. State Bar, 38 Cal. 3d 337, 342 (1985). However, Rule 5.2 now clearly states that calling balls and strikes on ethics is not the sole responsibility of the partner, the senior associate, or a firm’s ethics counsel or general counsel. Rule 5.2 requires a subordinate lawyer to make an independent determination of whether their particular conduct complies with the Rules of Professional Conduct and the State Bar Act.
While Rule 5.2 has no express parallel in the former Rules of Professional Conduct, it is not a novel concept. Rule 5.2 rejects in the attorney discipline context what is commonly referred to as the Nuremberg defense: the notion that a subordinate may avoid punishment for conduct performed at the direction of a superior. This defense was most notably rejected in the war crimes trials held in Nuremberg in the aftermath of World War II, thereby gaining the defense the name by which it is commonly known today. See H. T. King Jr., The Legacy of Nuremberg, 34 Case W. Res. J. Int’l L., 335, 340 (Fall 2002).
Nor is Rule 5.2 an entirely new concept in California’s regulation of the legal profession. Since 1939, Business and Professions Code section 6068 has prescribed the duties of “an attorney,” without qualification for time in grade or subordinate status. This includes the responsibility to “maintain the respect due to the courts of justice and judicial officers[,]” and to “counsel or maintain such actions, proceedings or defenses only as appear . . . legal or just . . . .” Cal. Bus. & Prof. Code, § 6068(b) & (c). An attorney is also required to refrain from encouraging “either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” Id. § 6068(g).
It has long been the rule that an attorney may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause, even if, upon filing, the facts indicated the suit had conceivable merit. Zamos v. Stroud, 32 Cal. 4th 958, 970-71 (2004). An attorney may be exposed to malicious prosecution liability for merely associating into the prosecution of a case that the attorney knows or should know contains untenable claims. See Sycamore Ridge Apartments, LLC v. Naumann, 157 Cal. App. 4th 1385 (2007). Attorneys with a limited scope of responsibility, having only “lent their names to the case[,]” may be held responsible for the continued existence of meritless claims in the suit. Cole v. Patricia A. Meyer & Associates, APC, 206 Cal. App. 4th 1095, 1119 (2012).
Our Fourth District Court of Appeal, Division Three, held in Jay v. Mahaffey, 218 Cal. App. 4th 1522 (2013), that the concept of liability for the “associated” attorney extends to an “associate” working at the direction of a superior. In Mahaffey, an action was prosecuted by a partner and his associate against an entity and a dozen limited partners in the entity. Evidence was presented that the limited partners had no liability whatsoever, and were apparently named as defendants to act as “pawns” in an “ongoing chess game” between the plaintiffs and the entity. Id. at 1545-46. The limited partners were then dismissed, and later brought an action for malicious prosecution against the associate, the partner, the attorneys’ law firm, and their clients. The trial court denied their anti-SLAPP motions to the limited partners’ malicious prosecution claims.
On appeal, Justice Eileen Moore wrote for the panel that the evidence of the partner’s malice was “overwhelming”: the partner’s hardball litigation tactics and threats of ongoing litigation raised a strong inference that the litigation was pressed to leverage a settlement, rather than to vindicate a legitimate claim. Id. at 1545. By contrast, evidence was presented that the associate had engaged in mostly ministerial functions in prosecuting the action: processing amendments to pleadings, relaying the partner’s position to opposing counsel, and processing dismissal paperwork. The court of appeal agreed with the trial court that the case against the associate was “not overwhelming.” Id. at 1545-46.
However, in a cautionary decision for newer lawyers, the court of appeal held that the associate could be held liable for her involvement in the prosecution of this apparently frivolous and badly-motivated action. The court recognized that “an associate attorney is not in the same position as an attorney associating into a case” and noted the “clear imbalance of power between an often younger associate and an older partner or supervisor.” Id. at 1546. Nonetheless, citing Business and Professions Code section 6068, the court of appeal reaffirmed that “every attorney admitted to practice in this state has independent duties that are not reduced or eliminated because a superior has directed a certain course of action.” That the associate was just following orders was not a valid defense. Id.
The same principle holds in State Bar Court discipline cases. See In re Maloney, 2005 WL 103063 at *21 (State Bar Ct. Rev. Dept. 2005) (“relatively inexperienced” associate disciplined despite stipulated fact that partner was in charge of the tactical decisions at issue). Accordingly, the various authorities governing our profession make it clear that the associate cannot simply act as a hatchet man and assume they will be insulated from liability or discipline. It therefore behooves every subordinate attorney (associate or otherwise) to analyze what they have been asked or told to do, and determine for themselves whether that conduct violates the rules.
Rule 5.2(a) is subject to an important caveat: “A subordinate lawyer does not violate [the Rules of Professional Conduct] 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.” Rule 5.2(b). “Reasonable” means “the conduct of a reasonably prudent and competent lawyer.” Rule 1.0.1(h).
The principle expressed by Rule 5.2(b), despite its conditions, is not without its critics. See Carol M. Rice, The Superior Orders Defense in Legal Ethics: Sending the Wrong Message to Young Lawyers, 32 Wake Forest L. Rev. 887, 889, 891 (1997) (criticizing substantively identical ABA Model Rule 5.2(b), arguing such a provision problematically “imparts to junior lawyers a defense to behavior that otherwise violates the rules of conduct”).
The associate will note that the plain language of Rule 5.2(b) does not permit the associate to passively rely on a partner or more senior associate’s mere assurance that a course of conduct is ethical. Rule 5.2(b) requires the associate to make a series of personal determinations before the safe harbor is even triggered.
First, the ethical question at issue must be “arguable.” In a related context (the propriety of advancing particular arguments on appeal), an issue is said to be “arguable” where the attorney is actually and reasonably of the opinion that their position on that issue has merit. See People v. Johnson, 123 Cal. App. 3d 106, 109 (1981). An intelligent assessment of the issue at hand is a necessary predicate to meet this condition. See Blanks v. Seyfarth Shaw LLP, 171 Cal. App. 4th 336, 378 (2009) (applying requirement as condition of raising “judgmental immunity” defense to malpractice claim). Analogously, Rule 5.2(b) therefore requires that the associate consider the ethical issue at hand, and make a determination that the issue can be defensibly resolved in more than one way.
Second, even once that wicket is hit, Rule 5.2(b) is subject to the further requirement that the supervisory lawyer’s resolution of the issue be subjectively and objectively reasonable. Again, it behooves the associate to engage in an independent determination of the reasonableness of the supervisory attorney’s directive, in order to ensure that Rule 5.2(b) even applies to the situation.
The Comment to Rule 5.2(b) further illuminates the Rule’s operation in practice:
[where an ethical] 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.
Both Rule 5.2(b) and the Comment thereto underscore that the subordinate lawyer should make an educated, personal assessment of even debatable ethical issues. Absent such analysis, the associate cannot be assured that he or she is operating within the rules. Further, it is not merely a good idea for the associate to effectively and assertively “manage up”: where thorny ethical issues are concerned, Rule 5.2(b) can make managing up essential.
In sum, existing authorities, including the new Rules of Professional Conduct, impose a series of responsibilities (and potential liabilities) upon every attorney, whether new or not-so-new. For new attorneys, in particular, the Rules create the opportunity for (and require) the exercise of one’s judgment.
Jason Moberly Caruso is an associate with Newmeyer & Dillion LLP in Newport Beach, California, where he specializes in complex environmental and land use matters, as well as appellate matters in state and federal courts. Mr. Caruso is a member of the OCBA’s Professionalism and Ethics Committee. He can be reached at firstname.lastname@example.org. The views expressed herein are his own.