by Todd W. Smith
The Overlooked Rules of Leadership When attorneys think of legal ethics, the topics that typically come to mind are conflicts of interest, confidentiality, and competence. But another set of rules—often relegated to the back pages of the California Rules of Professional Conduct—are just as vital to everyday practice: Rules 5.1, 5.2, and 5.3. Together, these provisions govern how lawyers lead, supervise, and collaborate with subordinates and staff. They establish the ethical responsibilities of managing and supervising attorneys, the duties of subordinate lawyers, and the obligations concerning nonlawyer personnel.
These rules recognize that the practice of law is rarely a solo endeavor. Even in small firms, lawyers work with paralegals, assistants, investigators, IT personnel, and other staff. In larger firms and legal departments, teams of junior and senior lawyers handle different aspects of cases or transactions. Rules 5.1, 5.2, and 5.3 provide guidance on how lawyers can properly delegate tasks and supervise others without running afoul of their ethical responsibilities.
Rule 5.1: Responsibilities of Managerial and Supervisory Lawyers Rule 5.1 requires partners and lawyers with managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to the Rules of Professional Conduct. But it does not stop there. It also requires all lawyers having “direct supervisory authority over another lawyer,” whether in a managerial role or not, to make reasonable efforts to ensure that the subordinate lawyer complies with his or her ethical obligations.
So, what steps can managers and supervisors take to ensure that their subordinates are complying with their ethical responsibilities? Establishing internal policies and procedures are critical here. For example, managing attorneys must make reasonable efforts to establish protocols related to detecting and resolving conflicts of interest, calendaring and case docketing, and client trust accounts. Firm leaders might also consider putting on ethics-related training sessions and designating an experienced lawyer as in-firm ethics counsel—someone whom other attorneys can confidentially approach with ethical questions or dilemmas.
While the Rules do not impose vicarious liability on a lawyer for the acts of another lawyer, they do provide that a lawyer can be responsible for another lawyer’s ethical violation in two specific situations:
Put simply, supervisors and managers cannot sit back and passively expect that their subordinates are complying with their ethical obligations. Rather, they must take an active role, including establishing firm-wide and department-wide policies, procedures, and training to ensure such compliance.
Rule 5.2: Responsibilities of a Subordinate Lawyer Rule 5.2 makes clear that a subordinate lawyer is not insulated from discipline simply because they acted at the direction of a supervising attorney. The subordinate must exercise independent professional judgment and can be held accountable for violations. To quote the Comment to Rule 5.2, where lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to the lawyers’ responsibilities, 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.”
At the same time, Rule 5.2 recognizes the realities of law firm hierarchy: if the ethical question is “arguable” and the subordinate acts in accordance with a supervising lawyer’s reasonable resolution, discipline shall not follow.
For example, imagine a senior partner instructs an associate to withhold certain documents in discovery. If the request is a clear violation of discovery obligations, the associate cannot blindly comply. But if the instruction concerns a gray area—such as a close question of whether a privilege applies—the subordinate may rely on the supervising attorney’s reasonable judgment. This balance encourages younger lawyers to think critically, while also protecting them when they in good faith follow their supervisor’s reasonable directions.
Rule 5.3: Responsibilities Regarding Nonlawyer Assistants Rule 5.3 extends supervisory obligations beyond subordinate attorneys to paralegals, law clerks, investigators, administrative staff, interns, and even outside vendors who assist in delivering legal services. Indeed, the modern practice of law—relying heavily on e-discovery vendors, contract attorneys, and outsourced services—makes Rule 5.3 particularly relevant.
Lawyers with managerial or supervisory authority must make reasonable efforts to ensure that nonlawyers’ conduct is compatible with the lawyer’s professional obligations. For example, if a law firm uses an outside vendor for document review, the supervising lawyer must ensure that confidentiality is preserved and discovery obligations are met. And a lawyer may be held responsible if they order, ratify, or knowingly fail to prevent a nonlawyer’s misconduct.
In Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001), the court found that two supervising lawyers had violated Washington’s version of Rule 5.3 (which is substantially similar to California’s version) by failing to properly supervise a paralegal who was reviewing documents produced by the opposing party. The paralegal reviewed thousands of documents that originated from the opposing party’s hard drive, including hundreds of emails that were privileged on their face. The court ultimately disqualified the law firm to “remedy the substantial taint placed on any future proceedings” by the paralegal’s review of the privileged materials. The court also concluded that the supervising lawyers failed to make “reasonable efforts” to ensure that the paralegal’s conduct was “compatible with the professional obligations” of the lawyers. A reasonably diligent lawyer, the court found, would have initially inquired whether the drive might contain privileged information and would have instructed the paralegal to stop reviewing if any question arose as to whether the drive contained privileged information. Because the supervising attorneys took neither of these steps, the Court held that they had violated Rule 5.3.
The Richards decision underscores the importance of ensuring that all personnel—including nonlawyers and even those outside the firm—are engaging in conduct that is compatible with the ethical obligations of the lawyer.
Why These Rules Matter More Today Several modern trends make compliance with Rules 5.1–5.3 increasingly significant—and even more challenging: Remote and Hybrid Work: The increased prevalence of lawyers working remotely makes it more challenging than ever for supervisors and managers to ensure ethical compliance. No longer can supervising attorneys rely on in-office oversight. Firm leaders should consider establishing policies and procedures for maintaining client confidentiality and file security in a remote environment, remote billing practices, and online training and mentoring.
Technology and AI: Lawyers and law firms are increasingly using AI to enhance their practice of law. However, the use of AI tools to assist with legal research or drafting of legal documents arguably implicates Rule 5.3, as it involves the delegation of legal tasks and services to nonlawyers. Lawyers must take reasonable steps to ensure that the use of AI tools and other nonlawyer services comply with the confidentiality, competence, and candor obligations set forth in the Rules of Professional Conduct.
Increasing Firm Size and Specialization: Larger teams and highly specialized practice areas also make it more challenging to ensure ethical compliance of subordinate attorneys and nonlawyer staff. These trends risk creating “ethical silos” where, without strong supervisory systems in place, communication breakdowns can result in undetected conflicts of interest, missed deadlines, or improper filings.
Shared Responsibility: Building a Culture of Compliance Ethical supervision is not merely about avoiding discipline; it is about fostering a culture of professionalism and accountability. Rules 5.1, 5.2, and 5.3 reflect a core truth: the ethical practice of law is a shared responsibility.
Among the practical steps that law firm and legal department leaders can take to promote ethical compliance are the following: Training Programs: Implementing robust and consistent legal ethics training for both attorneys and staff, including online training for remote workers. Written Policies and Procedures: Establishing clear guidelines and protocols relating to client confidentiality, data and file security, billing, trust accounting, and the use of AI tools. Open Communication: Encouraging subordinates to raise concerns without fear of reprisal or disclosure, including the designation of in-firm ethics counsel to maintain confidentiality and privilege of inquiries from attorneys and non-attorney staff. Reviews and Audits: Conduct periodic reviews and/or audits of legal billing, trust accounting, AI use, and client file handling to ensure ethical compliance.
The bottom line is that supervising and managing lawyers must lead with vigilance, subordinates must exercise independent judgment, and nonlawyer staff must be guided by clear professional standards. In an era of remote practice, technological disruption, and increasing complexity and specialization, compliance with these ethical duties is more important—and challenging—than ever.
Todd W. Smith is a partner at Umberg Zipser LLP where he practices complex business litigation in state and federal courts, with a focus on defending law firms and lawyers in legal malpractice actions. He is a member of the OCBA’s Professionalism & Ethics Committee. The views expressed herein are his own. He can be reached at tsmith@uzllp.com..