By: Kendra L. Basner
Happy New Year! In November 2018, 69 new or amended California Rules of Professional Conduct (“CRPC”) were thrust upon California’s more than 250,000 lawyers. These rules were renumbered and reorganized to align with the American Bar Association’s (“ABA”) Model Rules and replaced the 46 ethics rules that California lawyers had been following for nearly 30 years. Despite each of us having been responsible for adhering to these rules over the last year, many California lawyers and law firms still do not know, or do not fully appreciate, the significance of these modifications. Therefore, as we enter into this new decade and the second full year of these rules being in effect, I invite you and your firm to join my 12-step program to healthier law practice in 2020 and the years to come. Each month I will feature an article on the key ethics rule changes aimed at guiding you and your firm to a healthier law practice by better managing your risk of liability.
You can access each article directly on this blog page or you can subscribe to this blog to ensure that you don’t miss any of the 12-steps. Please note that the articles on this blog are not legal advice and do not take into account specific facts or circumstances for which a tailored analysis and risk management plan is recommended.
STEP 1 – RESPONSIBILITY
The criterion that each California lawyer is responsible for his or her own competent (Rule 1.1) and diligent (Rule 1.3) ethical conduct is not new; however, three new ethics rules make clear how a lawyer can be held responsible for the conduct of others as well.
A lawyer’s duty to supervise the work of a subordinate attorney and non-attorney employees or agents was implicit in old rule 3-310 (Failing to Act Competently), but the old rule said nothing about the subordinate lawyer’s duties. Now in-step with the Model Rules, not only have these duties garnered placement as separate rules 5.1 (Responsibilities of Managerial and Supervisory Lawyers) and 5.3 (Responsibilities Regarding Nonlawyer Assistants), but the duties of subordinate attorneys are now expressly defined under rule 5.2 (Responsibilities of a Subordinate Lawyer), by stating that a subordinate lawyer generally cannot defend a disciplinary charge by pointing the finger at a supervisor. Rules 5.1 and 5.3 also extend beyond the duty to supervise and include a duty on firm managers to have policies and procedures in place that cultivate ethical conduct within a firm.
Rule 5.1(a) addresses the managing lawyers of a law firm requiring that lawyers with managerial authority must make reasonable efforts to ensure compliance by the other lawyer(s) in the firm. Paragraph (b) concerns lawyers with direct supervisory authority over another lawyer, whether or not that other lawyer practices within the law firm, and requires the supervisory lawyer to make reasonable efforts to ensure compliance by the lawyer being supervised. As the rule’s comments clarify, “reasonable efforts” contemplate that firms should have enforceable policies and procedures in place to ensure that all firm lawyers will comply with the CRPC and State Bar Act. Rule 5.1, Comments  & . This includes, but is not limited to, implementing policies and procedures “to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised.” Rule 5.1, Comments . Risk management policies and procedures will vary depending on the size of the firm, its locations, its structure and the nature of its practice. Rule 5.1, Comment . Firms should also consider including procedures that encourage the reporting of any ethical issues or concerns to the appropriate personnel. Rule 5.1(a), Comments ,  and ; see also D.C. Bar Ethics Opn. 377. Permitting anonymous reporting, perhaps through a hotline or through designating a neutral firm representative who does not supervise or manage lawyers, may help reduce the reluctance or fear of reporting a colleague to ensure issues are detected and resolved expeditiously. In sum, supervisory or managerial lawyers within the firm will not be disciplined for a colleague’s unknown violation of the rules if reasonable efforts were made to institute policies and procedures designed to assure ethical compliance. Rule 5.1(a-b).
However, a lawyer could be held vicariously responsible for another lawyer’s ethical violation if under rule 5.1(c): (1) the lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved; or (2) the lawyer, individually or together with other lawyers, possesses managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, whether or not a member or employee of the same law firm, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Paragraph (c) also extends beyond the law firm to lawyers outside the firm who are being directly supervised. Comment  explains that each subparagraph of the rule creates an independent bases for liability, and paragraph (c) of this rule and rule 8.4(a) (Misconduct) can impose disciplinary liability on a supervisory or managerial lawyer for the conduct of a partner, associate or subordinate lawyer if that supervisor or manager has knowledge of the misconduct and fails to act. The question of whether a lawyer can be liable civilly or criminally for another lawyer’s conduct is beyond the scope of these rules. Rule 5.1, Comment .
Under new rule 5.2(a), a subordinate lawyer has an independent duty to comply with the CRPC and the State Bar Act and cannot blindly follow the instruction of his or her superior. Although subsection (b) states that a subordinate lawyer is not in violation if s/he acts in accordance with a supervisory lawyer’s “reasonable resolution of an arguable question of professional duty[,]” the Comment to 5.2 cautions that “[i]f 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.” As a best practice, lawyers in this position should put their communications in writing. However, merely communicating an objection to a supervisor does not fully discharge a subordinate lawyer’s duties. A lawyer’s personal responsibilities to a client are paramount. The Comment to rule 5.2 instructs: “When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to the lawyers’ responsibilities under [the CRPC] and the State Bar Act 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.”
Therefore, notwithstanding an attorney’s duties to his or her colleagues under rules 5.1 – 5.3, each lawyer has separate and independent ethical duties to protect each client and must prevent or mitigate any consequences of known misconduct.
Please contact author, Kendra Basner, if you have any questions about this article or if you would like guidance as to the application of or compliance with these rules.Back