by Jason Moberly Caruso
So often in this column, we focus on what you, the lawyer, personally should do to comply with the ethical standards governing our profession. It might surprise some to learn that lawyers must go beyond ensuring their own practice is ethical. Lawyers are obligated to make sure that those they manage—including attorneys and non-attorney employees or agents—comply with the Rules of Professional Conduct (Rules) as well. The practice of law is becoming fundamentally more collaborative all the time, with lawyers increasingly delegating tasks and analyses to systems and subordinates, in order to complete their work efficiently and in compliance with the myriad ethical and procedural rules governing our profession. (Credit to Newmeyer Dillion associate, Shaia Araghi, who posed a question regarding the potential supervisorial responsibility of associate attorneys, which inspired this article.)
This article does not address the obligations of subordinate attorneys who do not have managerial or supervisory responsibility. Those obligations are set forth in Rule 5.2, and are discussed in the September 2019 Ethically Speaking column.
Managerial Lawyers
Lawyers with management responsibilities must “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm comply” with the Rules and the State Bar Act. Rule 5.1(a). This Rule does not have an exact parallel in the prior Rules; it is based on a similar provision of the American Bar Association’s (ABA) Model Rules of Professional Conduct with the same number. While the concept of a general duty to supervise subordinate attorneys was a component of the duty of competence set forth in former Rule 3-110 (see, e.g., Waysman v. State Bar, 41 Cal. 3d 452, 457-58 (1986)), Rule 5.1(a) arguably expands the obligations of lawyers with management responsibilities to ensure that “all lawyers” in the firm, not just subordinates, comply with ethical rules. In drafting and proposing Rule 5.1, the Commission for the Revision of the Rules explicitly stated Rule 5.1 “extend[s] beyond the duty to supervise that is implicit in [former] rule 3-110 and include[s] a duty on firm managers to have procedures and practices that foster ethical conduct within a law firm.” See Commission’s Executive Summary Regarding Rule 5.1, available at https://www.calbar.ca.gov/Portals/0/documents/rules/Rule_5.1-Exec_Summary-Redline.pdf.
Comment 1 to the Rule explains that the above requires lawyers with managerial responsibility to “establish internal policies and procedures” to ensure ethical practice, identifying as examples conflict checks, scheduling deadlines in pending matters, accounting for client funds and property, and ensuring that inexperienced lawyers are properly supervised.
In larger firms, responsibility for establishing and maintaining these systems is generally delegated to a managing partner, general counsel, ethics committee, or similar body or person. Comment 3 to the Rule acknowledges that this delegation of responsibility can be appropriate, but the Comment warns that, “a lawyer remains responsible to take corrective steps if the lawyers know or reasonably should know that the delegated body or person is not providing or implementing measures as required by this rule.” Rule 5.1, Comment [3] (emphasis added). These processes cannot just be set and forgotten; rather, if managing lawyers actually or constructively know that these processes are outdated or no longer functioning as intended, they are ethically obligated to take action.
Accordingly, take some time to consider the inquiries raised by Rule 5.1(a), starting with the basics: Do you have “managerial authority,” whether “individually or together with other lawyers”? The Rule provides no bright-line standard: it does not expressly limit its application to non-equity or equity partners. Indeed, Comment 3 to Rule 5.1 acknowledges that a lawyer who is neither a partner nor a shareholder might still have “managerial responsibilities.” The Rule’s Comments confirm this analysis is a fact-driven inquiry governed by how your organization is composed and what your role is.
Other critical inquiries under Rule 5.1(a) include: What are the systems that your firm has in place for conflict checks, calendaring, and oversight? How do they work? Who has responsibility for making sure they still work, and (if necessary) updating them? Given the rise in the use of shared office space and office functions among solo practitioners or multiple small firms, consider whether that affiliation makes you a “law firm.” See Rule 1.0.1(c) and Comment [1] (a group of technically independent practitioners may be considered a law firm for purposes of the Rules “if they present themselves to the public in a way that suggests that they are a law firm or conduct themselves as a law firm”). The potential ethical hazards or consequences of shared office space (see Cal. State Bar Formal Opn. No. 1997-150) are beyond the scope of this article.
Supervisory Lawyers
Since Rule 5.1(a) by its terms applies to lawyers with “managerial authority,” associates and other non-managerial attorneys might believe they have no responsibility to ensure the ethical practice of other lawyers. Not so fast: Rule 5.1(b) provides that a lawyer having “direct supervisory authority over another lawyer, whether or not a member or employee of the same law firm, shall [also] make reasonable efforts to ensure that the other lawyer complies with these rules and the State Bar Act.” As discussed above, Rule 5.1(b) does not break new ground: supervisory attorneys have long been charged with a duty to supervise the work of subordinates as a corollary to former Rule 3-110. Crane v. State Bar, 30 Cal. 3d 117, 123 (1981).
Critically, lawyers may violate their duty of supervision by failing to make the reasonable efforts required by Rule 5.1(b), even if the subordinate lawyer’s conduct does not independently constitute a violation of the Rules. Gadda v. State Bar, 50 Cal.3d 344, 353-54 (1990) (“we reject petitioner’s contention that a supervising attorney can be found only as blameworthy as the associate he or she supervises. . . . [The] duty of supervision is separate and distinct from the underlying duties of a novice attorney to act competently”).
Even associate attorneys should therefore consider whether they are technically the supervisor of another attorney—even if the supervisee appears experienced. Matter of Hindin, 3 Cal. State Bar Ct. Rptr. 657, 682 (Rev. Dept. 1997) (construing former Rule 3-110). Do not assume that one associate cannot supervise another, or that titles such as “junior associate” or “senior associate” are dispositive. While relative time in grade, title, or other specifics are surely factors in determining whether one attorney is the supervisor of another, “Whether a lawyer has direct supervisory authority over another lawyer in particular circumstances is a question of fact.” Rule 5.1, Comment [5].
New services and modes of practice may also implicate Rule 5.1(b) in surprising ways, given the Rule applies with equal force to supervisee attorneys that are not employees of the same law firm. See N.Y.C. Bar Assoc. Comm. on Prof. and Jud. Ethics, Formal Opn. 2006-3 (considering lawyer’s duty of supervision over discovery review services outsourced to overseas lawyers or non-lawyers). This includes the use of contract lawyers, freelance brief writers, and other attorney outsourcing. See Cal. State Bar Formal Opn. No. 1992-126 (considering former Rule 3-110 as concerns the duty to supervise contract lawyers); ABA Formal Opn. 08-451 (considering a lawyer’s obligations for overseeing outsourced legal services).
Even if you do not have explicit managerial responsibilities, take the time to consider whether you are nevertheless another attorney’s supervisor (whether generally, on a specific case, or for a specific task). If you determine that you are, consider your obligations an opportunity to pass along your hard-earned experience regarding right practice.
Responsibilities Regarding Non-Lawyer Assistants
Rule 5.3 applies Rule 5.1’s managerial and supervisory obligations to a lawyer or law firm’s employment, retention, and/or association with non-lawyers in performing legal work or services adjunct to the practice of law, whether those persons are employees or independent contractors. Lawyers may delegate work appropriate to the function and capacity of a non-lawyer employee or other agent, but the lawyer remains ultimate responsible for that work (and potentially, violations of the Rules and/or the State Bar Act occurring in the course thereof). Matter of Phillips, 4 Cal. State Bar Ct. Rptr. 315, 335-36 (Rev. Dept. 2001) (lawyer responsible for staff’s improper communications with represented party); Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (lawyer ultimately responsible for paralegal’s miscalculating deadline, resulting in untimely appeal).
Young lawyers, or those new to the practice of law in a firm setting, may be surprised to know that they are responsible to ensure the ethical conduct of legal assistants or other firm employees that they work with—even those assistants or employees that have years or decades more legal experience. “Such assistants . . . act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning all ethical aspects of their employment.” Rule 5.3, Comment. While the less experienced lawyer can (and in many instances may do well to) rely on seasoned assistants to show them the ropes, lawyers must conduct their own evaluation to ensure that “the way things are done” is in fact the right way.
Attorneys’ obligations regarding non-lawyer assistants are also not necessarily limited to ethical practice in any particular case, but rather extend to a law firm’s general operations. Attorneys with managerial authority and supervisors both have obligations to ensure that non-lawyer assistants’ “conduct is compatible with the professional obligations of the lawyer.” Rule 5.3(a) & (b). Note that a lawyer is affirmatively required by the Rules not to knowingly permit unlawful discrimination or knowingly “permit the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.” Rule 8.4.1(b)(1). Accordingly, the Rules require lawyers not to solely be concerned with non-lawyer assistants’ work in particular matters, but whether such assistants have engaged in discrimination, harassment, or other conduct that violates the Rules and/or other regulations.
Conclusion
In conclusion, it can be all too easy for even the most personally ethical lawyers to assume that others are doing what they need to do, and that others have implemented systems to ensure things are done the right way. While lawyers may reasonably rely on others, lawyers must also consider whether that reliance is reasonable, and consider whether they have fulfilled their obligations to make sure that those who act on the lawyers’ behalf are working within the Rules.
Jason Moberly Caruso is a partner with Newmeyer Dillion in Newport Beach, 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 and the secretary of the OCBA’s Professionalism and Ethics Committee. He can be reached at jason.caruso@ndlf.com. The views expressed herein are his own.