You're the Boss

Supervising Attorneys' Responsibilities Under the Rules of Professional Conduct


 

Carolyn Fairless | Firm Managing Partner
Biography

Supervising attorneys must walk a fine line as it relates to their responsibilities under the Colorado Rules of Professional Conduct (“Rules”). On one hand, supervisors are responsible for the conduct of their subordinates and will be held accountable for that conduct. On the other hand, supervisors may be powerless to protect subordinates from individual accountability.

The Rules Are Intentionally Broad

Rule 5.1(b) states that “[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” Rule 5.1(c)(2) clarifies that a lawyer who has managerial authority over the law firm or has direct supervisory authority over another lawyer and knows of conduct by that lawyer that violates the Rules, and who fails to take reasonable remedial action, is responsible for the violation.

If that doesn’t get the attention of senior and managing partners, it should.

Comment 5 to the Rule clarifies that the scope is, and is intended to be, broad. “Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of the other firm lawyers engaged in the matter.” There is no “I didn’t know it was happening” defense for partners who should have known something was wrong and failed, or chose not, to recognize it. The Rules make clear that a supervisory partner, especially at the senior or managing partner level, should know what is happening in the office.

At the same time, subordinate attorneys are responsible for their actions. Supervising lawyers thus should not assume they can spare their supervisees from such accountability, even when the supervisor shares responsibility.

If You File It, You Own It

A federal judge in Texas recently made headlines for sanctioning two associates despite the attempts of senior partners to shield them.

In a non-party Motion for Contempt, in the matter of State of Nevada et al. v. United States Department of Labor et al., Chipotle Mexican Grill sought sanctions against two associates and two partners who co-counseled on a lawsuit attempting to utilize a stayed Department of Labor Final Rule. The partners urged the court to accept their responsibility and not sanction the associates, who were acting under senior supervision. The court declined to do so, citing first the fact that the associates were eight-year lawyers (who should presumably know better), and second, reminding the partners—and through them all lawyers—that lawyers are responsible for what they sign. There is no “I did it because I was told to” defense for lawyers who fail to speak up when mistakes are made or improper conduct occurs. If you file it, you own it.

Dual Responsibilities for Supervising Attorneys

Courts have also determined that supervising attorneys may be sanctioned for the actions of their subordinates. “If an attorney fails to satisfy the supervisory requirements of Rule 5.1 by actions or omissions, that attorney violates the Rules of Professional Conduct and can be sanctioned completely separate from any sanction issued for the underlying actions or omissions of the supervised attorney.” In re Anonymous Member of S.C. Bar, 346 S.C. 177, 183, 552 S.E.2d 10, 12 (2001).

The Court explained there are two levels of responsibility under Rule 5.1. The first is the ratification or failure to mitigate known misconduct by a supervised lawyer. In other words, you are responsible if you know of misconduct yet fail to take action.

The second is when a supervisory lawyer fails to “make reasonable efforts” in supervision. Thus, “[a]ttorneys can be sanctioned under Rule 5.1(b) even if they had no knowledge of the supervised attorney's inappropriate behavior.” In other words, courts can impose sanctions if supervising attorneys should have known. Finally, under Rule 5.1(a), partners in a law firm have “a generalized duty to put into place systematic measures to help prevent attorney misconduct.” Id. Simply knowing what your subordinates are doing won’t cut it. If a firm neglects to implement standards and systems to protect against misconduct, members of management may not be spared when misconduct is revealed.

Some Good News

It’s not all doom and gloom for supervising attorneys. The Restatement of the Law Third, The Law Governing Lawyers, indicates that, rather than supervising every step a junior lawyer makes, a supervising lawyer is required to take reasonable measures given the extent of supervision and experience of the supervised lawyer. The responsibility for monitoring or supervising may be delegated—for instance to a management committee or to other lawyers directly supervising a more junior lawyer’s conduct or performance on a specific matter. Essentially, a supervising lawyer must ensure that all lawyers working for the firm understand their ethical obligations and the firm’s commitment to ensuring compliance.

Managing and senior partners are well-served to be aware of what is happening in their offices. Take the following steps to ensure appropriate measures are in place to protect your firm, your subordinate lawyers, and yourself from disciplinary action:

  1. Create a culture where ethical conduct is emphasized and where lawyers feel safe reporting concerns.
  2. Dedicate loss prevention partners or ethics counsel to whom lawyers may turn with concerns or problems.
  3. Ensure adequate supervision of junior lawyer work.
  4. Do not allow a junior lawyer to be the only lawyer working a matter.
  5. Make sure junior lawyer billing is reviewed by a more senior lawyer.

These are key steps toward ensuring awareness, early intervention, and, perhaps, defensibility if something goes wrong.

Defending Lawyers & Law Firms When it Matters Most

Wheeler Trigg O'Donnell defends lawyers and law firms against high-stakes professional liability claims. Our team has successfully represented lawyers and law firms in at least 12 states.

In the past three years alone, WTO has won for lawyers and law firms in the Colorado Supreme Court, the Tenth Circuit Court of Appeals, and numerous state district and appellate courts.

Recent victories include:

  • Won a complete defense verdict for a lawyer and law firm accused of malpractice in the handling of a sale of interests in the plaintiff's company.
  • Won an arbitration for a law firm client that sued its former client for unpaid fees and was countersued for malpractice. The arbitrator rejected the malpractice claims and awarded WTO's client its unpaid fees plus interest, as well as its legal fees and costs incurred in the arbitration.
  • Obtained Rule 12 dismissal for an AmLaw 200 firm facing claims exceeding $500 million in state court in Kentucky.
  • Won a complete defense verdict in a professional liability claim against a law firm and lawyer. The plaintiff alleged that WTO's client was negligent, yet the jury found that not only was our client not negligent, but that the alleged negligence didn't cause the claimed damages.
  • Won a unanimous opinion from the Colorado Supreme Court refusing to follow a more permissive rule adopted by most states and strongly upholding Colorado’s strict privity rule in determining whether non-clients may sue lawyers for malpractice or professional liability.
  • Won Tenth Circuit victory for a law firm client in protracted litigation arising out of a divorce and bankruptcy characterized as "the most complex [the divorce court] has seen in 25 years."
  • Won a complete defense jury verdict in a $12 million legal malpractice case. The jury found in favor of WTO's client on all claims and also awarded unpaid legal fees owed by plaintiffs.

We understand how personal these claims can be. We also appreciate that staying out of court may be a client’s ultimate goal. Whether you wish to resolve claims creatively and discreetly or defend them vigorously before judge and jury, WTO will help.

About Wheeler Trigg O'Donnell

Since 2004, Wheeler Trigg O’Donnell lawyers have won 140 trial verdicts and complex arbitrations and 76 significant appeals nationwide for our clients.

Established in 1998, WTO currently numbers 100 lawyers. The firm represents sophisticated clients in high-stakes civil trials, arbitrations, appeals, and related litigation, including class actions, mass torts, and multidistrict litigation.

Awards