The Management of Law Firms - Supervisors and Subordinates

A lawyer is certainly entitled to delegate responsibilities to paralegals, clerks, interns, and others, but the lawyer must always supervise and accept responsibility for the work. 

Under the Model Rules, an attorney is required to exercise “reasonable care” to ensure subordinates act ethically. See MR 5.3(a) and (b). This is an affirmative obligation. A failure to supervise even those subordinates whom a supervisor trusts sincerely is a violation. 

EXAMPLE: Knowing that he has an ethical obligation to ensure subordinates act ethically, young junior partner Houndh is always looking over the shoulder of his paralegal Purrfect. Purrfect has done her job well for thirty years and knows a whole lot more about the law than does Houndh. Purrfect is annoyed by Houndh and wants him to back off. Houndh realizes he has been overbearing and annoying and takes the opposite tack – he leaves Purrfect alone and stops reviewing her work completely. Is Houndh in error? 

Houndh is required to exercise “reasonable care” to ensure Purrfect complies with rules. Even though he trusts Purrfect will do the job with excellence, Houndh still has an affirmative obligation to at least look over Purrfect’s work and lightly supervise. Failure to take affirmative steps to supervise is an ethical violation. 

A lawyer will be responsible for another’s violation of the ethical rules if the lawyer orders or knowingly ratifies the violation, or, on finding out about the violation, the lawyer fails to take remedial steps at a time when its consequences could still be avoided or mitigated. See MR 5.1(c)(1),(2). These rules apply to a lawyer who supervises a non-lawyer, as well. See MR 5.3(c).

In some states, a lawyer is required to conduct a reasonable investigation prior to hiring a non-lawyer assistant to ensure the assistant will not engage in conduct that is incompatible with the obligations of a lawyer. This may entail checking references and obtaining moral character reports from former employers. 

EXAMPLE: Attorney Chex was subject to discipline when it was discovered that his paralegal stole funds from the client trust. This is because Attorney Chex failed to properly investigate the background of his paralegal, who had previously been arrested and prosecuted for embezzlement. 

As noted in our introduction, a subordinate may not absolve herself of responsibility for an ethical violation by claiming she was “just following orders.” 

EXAMPLE: Attorney Klew told his new young associate Kim, who was also his new wife, to deposit in their savings account the money their client received from the opposition in satisfaction of a settlement. Kim did just as she was told. Both Klew and Kim were excited to no end that the money came in. It signified the end of a seemingly interminable case. They could finally take a vacation using the funds they were entitled to according to the contingency fee agreement with their client. 

Kim was “just following orders” when she deposited the client’s funds into her savings account, but this will not absolve her of responsibility for misappropriating client funds – even though the facts indicate she is young and probably inexperienced. All attorneys must be conscious of the fact that commingling client funds with personal funds is a taboo. Kim will not be able to invoke the “Nuremberg Defense” satisfactorily if she is called before the ethics board.