July 1998

Ethics And The Law Ethical Responsibilities of Lawyers Regarding Other Lawyers

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Many of us practice law in partnerships with other lawyers, or as a supervising lawyer of other lawyers, or as a lawyer supervised by another lawyer. This article outlines our ethical responsibilities under the Rules of Professional Conduct (RPCs) as to the conduct of other lawyers. It does not address a lawyer's ethical responsibilities as to nonlawyer assistants since those have been previously addressed in "Ethical Responsibilities of Lawyers Regarding Nonlawyer Assistants" (Bar News, June 1998, p. 39).

Overview of RPCs 5.1 and 5.2

RPC 5.1 specifies the ethical duty of a partner or supervisory lawyer as to other lawyers. RPC 5.1(a) requires a partner in a law firm to "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct." RPC 5.1(b) requires similar efforts by a lawyer who has supervisory authority over other lawyers. Where a partner also supervises another lawyer, the partner is subject to both RPC 5.1(a) and 5.1(b). RPC 5.1(c) outlines the situations in which the partner or supervising lawyer will be responsible for another lawyer's violation of the RPCs.

RPC 5.2 requires a lawyer to comply with the RPCs even where the lawyer may be acting at the direction of another person, and delineates the very limited circumstances under which a subordinate lawyer will be relieved of ethical liability for having otherwise violated the RPCs when acting at the direction of a supervisory lawyer.

Definition of a "Partner"

RPC 5.1(a) applies only to a "partner in a law firm." The "terminology" section of the RPCs defines the term "partner" as "a member of a partnership and a shareholder in a law firm organized as a professional corporation." Unless the lawyer is such a member or shareholder, the lawyer is not a "partner" as defined in the RPCs and is not subject to RPC 5.1(a).

Although the terminology section of the RPCs broadly defines the terms "firm" or "law firm" as "a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization, and lawyers employed in a legal services organization," RPC 5.1(a) does not apply unless that lawyer is a partner or shareholder. Thus, RPC 5.1(a) does not apply, for example, to lawyers in corporate or government legal departments. These lawyers, however, may be subject to RPC 5.1(b), discussed below.

Duty of a Partner to Other Lawyers

Under RPC 5.1(a) a partner must "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform" to the RPCs. "All lawyers" includes, of course, the partner's partners as well as employed lawyers. This is a responsibility of each partner and is not dependent on whether the partner has any supervisory authority. Nor is it dependent on the size of the firm or the fact that it has multiple locations.

What are the required "measures"? The RPCs do not list any specific measures. The appropriate measures will vary with the firm's structure, size, location(s), staff experience and nature of practice. The most important measure in any firm is a very clear policy, regularly stated, repeated and documented, and an understanding by all lawyers and all staff, that the ethical rules are the mandatory foundation of the firm's practice and that all lawyers and staff are expected and required to fully know and comply with them. Related to this should be a practice of clear, consistent and immediate action taken upon discovery of any ethical violation, and immediate efforts to remedy the effects of such a violation. The policy should be enforced whether the lawyer is the most senior partner or the most junior associate.

Such a policy, understanding and practice, however, are not sufficient of themselves. A partner should also see that his or her firm has ready access for its lawyers to information on legal ethics. This would include Washington's Rules of Professional Conduct and the published opinions of the WSBA Rules of Professional Conduct Committee, both of which are reprinted in Resources, published annually by the WSBA. The rules are also available in collected court rules and on the Supreme Court's Internet home page. In addition, each firm should have available for its lawyers publications that explain those rules. There is no comprehensive general analysis of Washington's Rules of Professional Conduct. The closest to it is perhaps this author's continuing work-in-progress CLE materials, Legal Ethics, Discipline and Professionalism. Each firm should also have available to its lawyers (directly or through a library) treatises on the ABA Model Rules of Professional Conduct, on which Washington's Rules of Professional Conduct are largely based. Every lawyer should also have his or own copy of the ABA Center for Professional Responsibility's one-volume paperback, Annotated Model Rules of Professional Conduct, Third Edition (1996) (available from the American Bar Association Service/Publications Center, 800-285-2221). More expansive and expensive are the two-volume Geoffrey Hazard & William Hodes, The Law of Lawyering: A Handbook on The Model Rules of Professional Conduct (Aspen Publishers, Second Edition, supplemented annually), and the multi-volume ABA/BNA Lawyers Manual on Professional Conduct (available from the Bureau of National Affairs, 800-372-1033). Aging, but still useful, is Charles W. Wolfram's hornbook, Modern Legal Ethics (West, 1986). Every firm should also assure that its lawyers are aware that the WSBA Professional Responsibility Counsel (206-727-8284) is available to discuss with them ethical issues of their proposed future conduct.

Regardless of the size of the firm, another measure that partners may wish to consider putting into effect to assure compliance with the RPCs is establishing a firm practice of a senior partner regularly leading a discussion at firm meetings on the disciplinary notices, or the Ethics & the Law column, published each month in the Washington State Bar News, with a view to keeping the firm's lawyers abreast of ethical issues and reported ethical violations. Such a discussion might focus, for example, on how the firm's lawyers can assure that they do not engage in the type of misconduct described in the notices, and how the firm can improve its procedures to better serve its clients. Alternatively, the firm could schedule a systematic review of the RPCs at periodic meetings, announcing in advance which one or two specific rules are to be considered, and assigning a senior partner to lead the discussion.

In a small firm the appropriate "measures" which a partner may consider putting into effect might be somewhat more informal and might include, for example, the daily interaction of a partner with his or her subordinate lawyers, where guidance is sought and given and questions are asked and answered. The practice of circulating advance sheets among the firm's lawyers and regular discussion among them of current cases also might be appropriate.

In a very large firm, or one having multiple locations, it is likely that the required "measures" will need to be more formal. They might include, for example, creation of a firm ethics manual setting forth the firm's requirement of ethical conduct, requiring that each lawyer participate in continuing legal education as to ethical issues, directing that ethical issues and possible violations within the office be immediately directed to a designated senior partner or committee, use of checklists on transactions which include an overview to assure compliance with ethical obligations, structured training for lawyers and staff by a committee of partners, and so on. Such training should not be limited to ethical issues. Since a principal ethical duty, for example, is to provide competent representation to a client, the training should also include relevant substantive law to assure such competence, as well as training in such basics of law office management as communications, ethical billing and collection practices, maintaining trust accounts, diligence, and so on.

The partner would also want to assure that the firm has in effect procedures to verify that each lawyer in the firm remains authorized to practice law in jurisdictions where needed and that lawyer job candidates are admitted to the Washington bar and are not suspended or disbarred lawyers from other jurisdictions. The "measures" would also include establishment of docketing and conflicts checks systems to assure that the firm's lawyers are handling matters diligently and not in violation of the conflict-of-interest provisions.

A partner is not a guarantor that all of the firm's lawyers will in fact act ethically. The partner is merely required to make reasonable efforts to ensure that the firm has in effect measures to reasonably assure ethical conduct by its lawyers. The partner should periodically review the firm's existing "measures" and immediately act if they are inadequate. The partner should also document such a review and his or her efforts to remedy any deficiencies, so that the partner can prove his or her ongoing compliance with RPC 5.1(a). If the partner has made reasonable efforts to ensure such compliance, and nevertheless a lawyer in the firm fails to meet the required ethical standards, the partner will generally have met his or her responsibilities under RPC 5.1(a).

Definition and Duties of a Supervising Lawyer

RPC 5.1(b) defines the duties of a "lawyer having direct supervisory authority over another lawyer." The RPCs do not define that phrase, nor is there significant judicial interpretation of it. It appears to include, however, partners who oversee other lawyers, as well as direct supervisory lawyers in law firms, corporate and government legal departments, pro bono organizations, regardless of whether the person they supervise is another partner, an associate, an "of counsel" lawyer, a contract lawyer or a volunteer lawyer. A partner who has no direct supervisory authority over any other lawyer would thus not be subject to RPC 5.1(b), but would still be subject to RPC 5.1(a).

RPC 5.1(b) requires a lawyer having direct supervisory authority over another lawyer to "make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct." The required "reasonable efforts" will likely include many, if not most, of the measures discussed above with reference to partners. It is clear that a practice of allowing subordinate lawyers in a firm to "sink or swim" does not satisfy RPC 5.1(b). See In re Yacavino, 494 A. 2d 801 (N.J., 1985). The rule recognizes that work will be delegated by one lawyer to another, but equally clearly holds that delegation does not relieve the delegator of responsibility for the delegated work.

The rule requires that the supervisory authority be a direct authority. The requirement that the supervisory authority be direct should likely be interpreted both vertically and horizontally. In a large firm, for example, a new associate may well report to a senior associate, who in turn reports to a junior partner, who may then report to a senior partner. Under RPC 5.1(b), it would appear that each supervisory lawyer is responsible only for the conduct of the lawyer over whom he or she has direct supervisory authority, and not for other lawyers further down the hierarchy. The two partners in this example would, of course, still have duties under RPC 5.1(a) for all the lawyers.

"Direct" should also be interpreted horizontally and perhaps even geographically. For example, in a large firm with multiple practice area departments, a partner or supervisory lawyer in the business transactions department is unlikely to have direct supervisory authority over a lawyer in the litigation department, and thus would normally not have responsibility under RPC 5.1(b) for that litigating lawyer. But if the business lawyer did in fact have direct supervisory authority over the litigating lawyer, the business lawyer would be subject to RPC 5.1(b), and would be required to make reasonable efforts to assure that the litigating lawyer's conduct complied with the RPCs. If the business lawyer did not have direct supervisory authority over the litigating lawyer, but was a partner who had not made reasonable efforts to assure that the firm had in effect measures to assure compliance with the RPCs, the business partner would be liable under RPC 5.1(a) for violations of the RPCs by the litigating lawyer. For example, if the violation of the litigating lawyer was to represent a client in a clear conflict of interest situation, and if the firm had no measures in place to avoid conflict of interest situations, the business partner would have violated RPC 5.1(a) by failing to make reasonable efforts to ensure that such measures were in place. Similarly, if a firm has various geographically separate offices, unless a lawyer in one office has direct supervisory authority over a lawyer in another office, it would appear the lawyer in the first office would not have responsibility under RPC 5.1(b). If either lawyer were a partner, RPC 5.1(a) would still of course apply to the partner regardless of the geographical separation.

RPC 5.1(b) anticipates a direct relationship which, by definition, will likely involve one-to-one contact and communication. At the least, the supervising lawyer should assure himself or herself that the subordinate lawyer is familiar with the RPCs and understands the necessity to comply with them. The supervising attorney should also anticipate obvious ethical issues that may arise in connection with the particular legal matter at hand and discuss them with the subordinate lawyer. For example, if the subordinate lawyer is handling a case where the other side is represented by counsel, the supervising lawyer should make sure that the subordinate lawyer knows that he or she cannot directly communicate with the opposing client in violation of RPC 4.2, or, if the opposing client is not represented, give that client the impression that the subordinate lawyer is disinterested in the matter in violation of RPC 4.3. Similarly, in a firm with a high-volume practice, the efforts might include initial training and refresher courses, and regular and frequent meetings with the subordinate lawyer before actions are taken, as well as regular reviews of matters handled. It might also include periodic "audits" of past cases, including review of case files, pleadings, and inquiry of the client, opposing counsel and others whom the subordinate lawyer has dealt with in the course of handling the case.

Liability of Partner or Supervisory Attorney for Ethical Violations of Other Lawyers

RPC 5.1(c) specifies when a lawyer is liable for another lawyer's violation of the Rules of Professional Conduct. In general, the liability is not vicarious, but only accessory. The RPCs apply only to individual lawyers and not to firms. Thus, liability under RPC 5.1(c) is imposed only on individual lawyers, and not on firms as entities.

Under RPC 5.1(c), a lawyer is responsible for the ethical violation of another lawyer in only two situations. The first is when "the lawyer orders, or, with knowledge of the specific conduct, ratifies the conduct involved." A lawyer generally can "order" or "ratify" conduct only if the lawyer is a partner or is a lawyer having direct supervisory authority over the offending subordinate. For practical purposes, this situation is limited to partners and supervisory lawyers. If the lawyer orders the conduct, the lawyer knows of the conduct in advance. If the lawyer ratifies the conduct, he or she is liable only if he or she knew of the specific conduct. The "Terminology" section of the RPCs defines the terms "knowingly," "known" and "knows" as denoting "actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances."

Under RPC 5.1(c), a lawyer is also responsible for the conduct of another lawyer when "the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action." Under this rule, a lawyer who is a partner has liability regardless of whether the offending lawyer is under his or her direct authority, but only if the partner knows of the misconduct at a time when it can be remedied and fails to take action to do so. If, for example, a subordinate lawyer engaged in misconduct, and another subordinate lawyer and a partner (neither of whom themselves engaged in the misconduct) were each aware of the potential misconduct at a time when it could be remedied, the second subordinate lawyer would probably not be liable under RPC 5.1(c) (1) or (2) since it is unlikely he or she would be in a position to remedy the situation. The partner, however, would be liable under RPC 5.1(c)(2) if he or she failed to take remedial steps while there was time to do so. In this case, of course, such failure to timely remedy might also be seen as a "ratification" of the misconduct under RPC 5.1(c)(1).

If a lawyer is liable under RPC 5.1(c), the lawyer may well also be liable for misconduct under RPC 8.4(a). That rule states that it is professional misconduct to "violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another."

Responsibility of a Subordinate Lawyer

RPC 5.2 considers the question of ethical responsibility not from the perspective of the partner or of the supervisory lawyer, but rather from that of the subordinate lawyer. It recognizes that many lawyers work under the direction of other lawyers. It nevertheless requires the subordinate lawyer to comply with the ethical rules and does not, except in narrow circumstances, allow such subordination to excuse an ethical violation.

RPC 5.2(a) provides that "A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person." The only exception, provided by RPC 5.2(b), is very narrow: "A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional conduct."

A comment (not adopted by Washington) to the ABA Model Rule exemplifies this exception by noting that if a subordinate lawyer filed a frivolous pleading at the direction of a supervisory lawyer, the subordinate lawyer would not be guilty of an ethical violation unless the subordinate knew of the document's frivolous nature. Since RPC 5.2(b) does not have a lack-of-knowledge requirement, the comment implies either that the supervisory lawyer's resolution of the question was not "reasonable," or that the question was not "arguable." Thus, if we assumed the same facts, but also assumed that the subordinate lawyer had consulted a senior partner in the firm (other than the supervisory lawyer) who advised the subordinate that the pleading was clearly frivolous, and the subordinate lawyer filed the pleading anyway, the subordinate would not be protected by RPC 5.2(b) since either the question was no longer arguable or the subordinate lawyer was on notice that the supervisory lawyer's resolution was not reasonable. In such a case the subordinate lawyer should obviously seek to resolve the differences in view between the supervisory lawyer and the partner before taking further action.

Conclusion

The obligations imposed on partners and supervising lawyers under RPC 5.1 merely reflect to a large degree what any prudent partner or supervising lawyer is very likely already doing, and assures them they will not have ethical liability for the misconduct of other lawyers. The provisions of RPC 5.2 remind the subordinate lawyer that he or she must exercise independent ethical judgment, but also assures that lawyer that where he or she acts in accordance with his or her supervisory lawyer's reasonable resolution of an arguable question of professional duty, he or she will not be liable for an ethical violation.

Each of us, whether partner, supervising lawyer or subordinate lawyer, knows that legal ethics must form the foundation of our professionalism. Each of us knows that only so long as each of us is guided by and meets our ethical responsibilities, and only so long as we each aspire to the highest possible degree of ethical conduct, will the practice of law continue to be a noble profession.

For a complete copy of any disciplinary decision, call the Washington State Disciplinary Board at (206) 727-8280 leaving the case name and your address.