ER 5.1 Responsibilities of Lawyers Who Have Ownership Interests or are Managers or Supervisors; ER 5.2 Responsibilities of a Subordinate Lawyer; and ER 5.3 Responsibilities Regarding Nonlawyers
The Standard
Lawyers with an ownership interest, or managerial authority, shall make reasonable efforts to ensure that the firm has policies and procedures providing reasonable assurance that the lawyers and nonlawyers in the firm comply with the Rules of Professional Conduct.
The Limitation
Although what constitutes reasonable efforts requires a case-by-case analysis, having policies that staff are trained on, are updated, and are enforced is a good place to start. There will be times when there is a reasonable question about the professional duty owned, in which case, a subordinate lawyer who acts under the direction of the supervisor, does not violate the Rules. Supervision of nonlawyers extends from in-house paralegals to outside vendors and contract lawyers.
ER 5.1 Responsibilities of Lawyers Who Have Ownership Interests or are Managers or Supervisors
1: The lawyer with managerial responsibility must create reasonable safeguards, not just be “available” actively supervise
2: The lawyer with managerial responsibility is not a guarantor of the compliance of subordinates.
3: Supervisors must be sure that their subordinates not only understand the law and legal procedures, but also impress upon them the ethical obligations of their actions. And review all written work of supervised lawyers – at least for a while.
4: Supervising lawyers need to confirm (test) that the policies and procedures they think are firm policy, are being used and are functional. Review regularly.
FAQs
Not necessarily. You are not a guarantor that your associate is in compliance with the Rules of Professional Conduct, but you must create reasonable safeguards to promote compliance with the rules. This may include educational efforts, institution of routine procedures, like conflict checks and calendaring, or practice group management.
Yes, it is. If there is time/opportunity to do so, you must take remedial action.
Wrong. Although the degree of supervision required depends on the specific facts, if you have supervisory authority over the new attorney, you must make reasonable efforts to ensure the associate understands the law, complies with the legal procedures of the court and communicates sufficiently and appropriately with the client, in addition to his other ethical obligations.
Wrong. You must also be sure they are actually implemented and are functioning within the firm. Periodic tests/reviews should be done to create a culture of compliance, and you may need to consider reeducation programs or other internal discipline if the firm’s policies are not followed.
ER 5.2 Responsibilities of a Subordinate Lawyer
1: There is no “Nuremberg” defense.
2: There is limited immunity, depending on judgment and discretion.
3: Ask someone independent (hint: the ethics hotline!) if you really wonder if it is an “arguable” issue.
FAQs
Yes, you can. You must comply with the Rules of Professional Conduct, even if you are given explicit instructions to do otherwise.
Not necessarily. There are circumstances where professional obligations are unclear, or subject to conflicting interpretations between a supervisor and a subordinate. If the position is reasonably supportable, it is not a violation of the Rules.
If there are no other supervisors to go to, a good place to start is the Ethics Hotline at 602-340-7284.
ER 5.3 Responsibilities Regarding Nonlawyers
1: Lawyers working with nonlawyers in a firm must supervise and instruct nonlawyers to comport themselves consistent with the lawyer’s ethical obligations.
2: Lawyers working with an outside vendors should do due diligence when selecting outside venders.
3: Lawyers working with outside vendors should conduct conflict checks, make confidentiality a term of the service and provide appropriate instructions to nonlawyers.
4: Lawyers are not guarantors of the compliance of nonlawyers.
FAQs
No. Having your staff help you meet your ethical (and legal) obligations is fine – they just cannot materially limit or control your “independent professional judgment” for clients.
Yes. Rule 5.3(b)(3) specifically provides “(3) When retaining or directing a nonlawyer outside the firm to assist the lawyer's delivery of legal services, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer.” This means at a minimum; you must discuss with the vendor their duty to maintain the confidentiality of all information they possess. You should also do your due diligence to see that the vendor has reasonable measures in place to safeguard the data. Just having a contract with the vendor that says that is not enough! Actively supervise.
Confirm they understand the scope of work they have been assigned, explain what access they can or cannot have to firm data (including only specific client files), assure they maintain the confidentiality of the information they possess, make sure they return client information/documents/data when the project is completed, and review what they do – including checking citations in legal documents (especially if drafted using AI). Don’t forget to have temporary personnel avoid conflicts of interest, so they do not work for the opposing counsel at the same time they are working for you on the same matter.
Absolutely – but that is not enough! Every firm should regularly provide ethics training to all personnel and discuss the policies in the manual to assure the policies fit the practice and that every lawyer and nonlawyer understands their duties of confidentiality, competence, communication, professionalism, avoiding the unauthorized practice of law, avoiding conflicts of interest, and overall adhering to all the Rules of Professional Conduct.
Don’t take that chance with your license. Go over your firm’s ethics policies (and procedures) and actively supervise even experienced new nonlawyer staff (this means checking their work, reviewing their communication skills, and assuring they are following firm procedures).
A lawyer does not have to be physically in the office (and staff do not have to be in a physical office – remote work is acceptable) to provide competent supervision. But a lawyer supervisor does need to be available to answer questions and review documents drafted by staff. A lawyer also should ensure they check in with staff who are working remotely (or the lawyer if working remotely) on at least a daily basis to assure deadlines are being met, communications are being handled diligently, and workloads are not overwhelming. If the firm permits remote work, it should also have a policy regarding use of technology.
Wrong. Yes, you are. That is why lawyers are responsible for ensuring deadlines are met and staff workloads are not overwhelming. Rule 5.3(c) expressly makes the lawyer responsible for the conduct the lawyer orders or ratifies or “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
Yes. Even if a nonlawyer is the 100% owner of an ABS law firm, the lawyer is responsible for ensuring there are policies and procedures in place so the nonlawyer comports his or her actions to the Rules of Professional Conduct.
