question
Model Rule 5.1
answer
Responsibilities of Partners, Managers, and Supervisory Lawyers
question
Rule 5.1(a)
answer
A partner in a law firm, and lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm, shall 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.
comparable managerial authority in a law firm, shall 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.
question
Rule 5.1(b)
answer
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.
that the other lawyer conforms to the Rules of Professional Conduct.
question
Rule 5.1(c)(1)
answer
A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved
question
Rule 5.1(c)(2)
answer
A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(2) The lawyer is a partner or has comparable managerial authority 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 remedial action.
(2) The lawyer is a partner or has comparable managerial authority 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 remedial action.
question
Pursuant to Rule 5.1(a), what roles are included in the category of lawyers who have "managerial authority" over the professional work of a law firm?
answer
Roles pertaining to lawyers who have "managerial authority" over the professional work of a law firm include:
Members of a partnership;
The shareholders in a law firm organized as a professional corporation;
Members of other associations authorized to practice law;
Lawyers have comparable managerial authority in legal services organizations or a law department of an enterprise or government agency; and
Lawyers who have intermediate managerial responsibilities in a firm.
Members of a partnership;
The shareholders in a law firm organized as a professional corporation;
Members of other associations authorized to practice law;
Lawyers have comparable managerial authority in legal services organizations or a law department of an enterprise or government agency; and
Lawyers who have intermediate managerial responsibilities in a firm.
question
Pursuant to Rule 5.1, what is the key difference between paragraph (a) and paragraph (b)?
answer
5.1(a) applies to lawyers who have MANAGERIAL AUTHORITY over the professional work of a firm, and
5.1(b) applies to lawyers who have SUPERVISORY AUTHORITY over the work of other lawyers in a firm.
5.1(b) applies to lawyers who have SUPERVISORY AUTHORITY over the work of other lawyers in a firm.
question
Pursuant to Rule 5.1, what are some of the policies and procedures required to employ by lawyers with managerial authority within a firm to make reasonable efforts to ensure the firm conforms to the Rules of Professional Conduct?
answer
Such policies and procedures include:
This designed 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.
This designed 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.
question
Pursuant to Rule 5.1, can other measures that may be required to fulfill the responsibility prescribed in paragraph (a) be dependent on the firm's structure and nature of its practice, or are the measures the same across all firms of varying size and nature?
answer
Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) CAN depend on the firm's structure and nature of its practice.
For example, small firms of experienced lawyers may only necessitate information supervision and periodic review of compliance, while large firms or firms where difficult ethical problems frequently arise may require more elaborate measures to be employed.
Firms, whether large or small, may also rely on continuing legal education in professional ethics.
For example, small firms of experienced lawyers may only necessitate information supervision and periodic review of compliance, while large firms or firms where difficult ethical problems frequently arise may require more elaborate measures to be employed.
Firms, whether large or small, may also rely on continuing legal education in professional ethics.
question
Pursuant to Rule 5.1, may partners in a firm assume that all lawyers associated with the firm will inevitably conform to the Rules?
answer
NO.
question
Pursuant to Rule 5.1, what does paragraph (c) express?
answer
Rule 5.1(c) expresses a general principle of PERSONAL RESPONSIBILITY for acts of another.
question
Pursuant to Rule 5.1, how are the duties of comparable authority of partners and lawyers of a firm different from a partner or manager in charge of a particular matter?
answer
Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm.
A partner or manager in charge of a particular matter ordinarily ALSO has supervisory responsibility for the work of other firm lawyers engaged in that matter.
A partner or manager in charge of a particular matter ordinarily ALSO has supervisory responsibility for the work of other firm lawyers engaged in that matter.
question
When is a supervisor required to intervene to prevent avoidable consequences of misconduct?
answer
A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor KNOWS that the misconduct occurred.
Thus, if a supervising lawyer KNOWS that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor AS WELL AS the subordinate has a duty to correct the resulting misapprehension.
Thus, if a supervising lawyer KNOWS that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor AS WELL AS the subordinate has a duty to correct the resulting misapprehension.
question
Pursuant to Rule 5.1, does a lawyer have disciplinary liability for the conduct of a partner, associate, or subordinate?
answer
No - Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these Rules.
question
Model Rule 5.2
answer
Responsibilities of a Subordinate Lawyer
question
Rule 5.2(a)
answer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the
direction of another person.
direction of another person.
question
Rule 5.2(b)
answer
(b) 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 duty.
with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
question
Pursuant to Rule 5.2, can a subordinate lawyer be received of responsibility for violation by the fact that he acted under the direction of a supervisor?
answer
No - However, the fact that the subordinate acted under the direction of a supervisor may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules.
question
If a subordinate filed a frivolous pleading at the direction of his supervisor, would the subordinate be found guilty of a professional violation?
answer
No - Unless the subordinate KNEW the documents were frivolous in character, then the subordinate would be guilty of a violation of professional conduct.
question
When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgement as to ethical duty, who ordinarily assumes the responsibility for making the judgement?
answer
The supervisor, not the subordinate.
question
In a supervisor-subordinate relationship, who ordinarily assumes the responsibility of an ethical judgement for (a) a question that can easily be answered only one way v. (b) a question that is reasonably arguable?
answer
If the question can reasonably be answered only one way, the duty of BOTH lawyers is clear and they are EQUALLY responsible for fulfilling it.
However, if the question is reasonable arguable, someone has to decide upon the course of action, and that authority is ordinarily reposed in the supervisor, and a subordinate may then be guided accordingly.
However, if the question is reasonable arguable, someone has to decide upon the course of action, and that authority is ordinarily reposed in the supervisor, and a subordinate may then be guided accordingly.
question
Model Rule 5.3
answer
Responsibilities Regarding Non-lawyer Assistance
question
Rule 5.3(a)
answer
With respect to a non lawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer.
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer.
question
Rule 5.3(b)
answer
With respect to a non lawyer employed or retained by or associated with a lawyer:
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with the professional obligations of the lawyer.
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with the professional obligations of the lawyer.
question
Rule 5.3(c)(1)
answer
With respect to a non lawyer employed or retained by or associated with a lawyer:
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
question
Rule 5.3(c)(2)
answer
With respect to a non lawyer employed or retained by or associated with a lawyer:
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
question
Pursuant to Rule 5.3, what are the key differences between paragraphs (a), (b), and (c)?
answer
Paragraph (a) applies to lawyers with managerial authority within a law firm and imposes the duty upon such lawyers to ensure that non-lawyers IN and OUTSIDE the firm who work on firm matters are complying with the professional obligations of the lawyer;
Paragraph (b) applies to lawyers who have supervisory authority over such non lawyers within OR outside the firm; and
Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such non lawyers within OR outside the firm that would violate the Rules of Professional Conduct if engaged in by the lawyer.
Paragraph (b) applies to lawyers who have supervisory authority over such non lawyers within OR outside the firm; and
Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such non lawyers within OR outside the firm that would violate the Rules of Professional Conduct if engaged in by the lawyer.
question
Pursuant to Rule 5.3, what responsibilities do lawyers have regarding instructing assistants such as secretaries, investigators, law student interns, and paraprofessionals?
answer
A lawyer MUST give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client AND the lawyer should be responsible for the assistants' work product.
question
Are legal assistants subject to professional discipline?
answer
No - non lawyers and legal assistants are NOT subject to professional discipline and lawyers should take into account the fact that these individuals do not have legal training when employing measures of supervision.
question
Pursuant to Rule 5.3, what duties do lawyers have regarding clients who direct the selection of particular non-lawyer service providers OUTSIDE the firm?
answer
The lawyer should ordinarily agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer.
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