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On April 29, 2004, the D.C. Court of Appeals sent a powerful wake-up call to all lawyers who supervise or manage other attorneys. In In Re Herbert Cohen, 2004 DC App. LEXIS 194, the court upheld a 30-day suspension of a supervising partner on the grounds that the partner failed to adequately supervise an associate. The court, which was following a recommendation of the D.C. Board on Professional Responsibility, made clear in its decision that it was paving new ground in the law governing supervisory lawyers and that the principles it enunciated extended beyond the law firm context. “This case,” the court wrote, “presents new questions relating to the supervisory responsibility of senior lawyers for the performance of subordinate lawyers working under their direction in a law firm, law department, government agency, or other legal group.” A fact that was most striking about the court’s decision — and will likely be unsettling to some observers — was that the supervisory lawyer in the dock was subjected to the harsh sanction of a suspension from the practice of law, despite a spotless disciplinary record over a 30-year career, full and candid cooperation in the disciplinary process, and the absence of any dishonest conduct in the case at issue. When one contemplates the dislocation — and yes, the humiliation — of a suspension, even one of only 30 days, one will recognize that this is no mere “slap on the wrist.” The associate’s underlying conduct resulted from an evolving conflict of interest in pursuing a trademark. The associate was found to have violated Rules 3.3(a) and 8.4(c) of the Rules of Professional Conduct by making a material misstatement of fact to the U.S. Patent and Trademark Office in filing a withdrawal of a client’s trademark application by asserting that the client had expressly chosen to abandon the trademark application. There was no finding that Herbert Cohen, the supervising partner, had approved of, or was even aware of, the filing of the withdrawal at the time. The respondent’s contention in the disciplinary proceedings was that it was unfair to discipline a supervising lawyer on account of dishonest acts by a subordinate lawyer that the supervising lawyer was not aware of at the time. The court recognized that this is not a matter of simply imputing an associate’s conduct to the associate’s supervisor and acknowledged that a supervising lawyer does not violate Rules 3.3(a) or 8.4(c) when he or she does not “know” of the dishonest conduct. However, the court held that the supervising lawyer nevertheless violates Rule 5.1(c)(2) for inadequate supervision if the supervising lawyer reasonably should have known of the conduct. The court stated that the adoption of Rule 5.1(c)(2) in this jurisdiction “represents a judgment that attorneys supervising other lawyers must take reasonable steps to become knowledgeable about the actions of those attorneys in representing clients of a firm.” The court further noted that the Board on Professional Responsibility had found that the firm did not have in place a system to provide ethics training to less-experienced lawyers. It noted, “Equally troubling was the lack of a review mechanism which allowed an associate’s work to be reviewed and guided by a supervisory lawyer.” Separately, the noose for supervising lawyers has tightened a bit in recent American Bar Association amendments to the wording of Rule 5.1 as well. As part of the Ethics 2000 changes, the language of Rule 5.1 was modified “to clarify that [the obligation] applies to managing lawyers in corporate and government legal departments and legal service organizations, as well as to partners in private law firms.” These developments, taken together, can be seen as a trend toward stricter scrutiny of the activities of supervisory lawyers. See also, “Accountable for Others,” Legal Times, July 14, 2003, Page 17. D.C. Bar counsel will likely use the ruling in In Re Herbert Cohen as a basis for seeking more frequent discipline of supervisory attorneys. Partners who may be tempted to steer clear of hands-on involvement when an associate is involved in a difficult case should know that lack of actual knowledge does not create disciplinary immunity. Likewise, partners who believe that giving associates cases and letting them “run with it” as a way for them to gain experience and confidence, must consider the downside in the event the case goes awry. Finally, supervising lawyers who see their role as merely being available in the event that an associate comes to them with a question should also re-examine their practice. Many clients may not agree that substantial time expended by a supervisory lawyer on a case should be compensated. The benefit of such supervision, however, is not limited to avoiding professional discipline. Active case supervision is strong preventive medicine against malpractice claims and unhappy clients. In a service profession such as ours, often what’s best for our clients is also best for ourselves. At least, that’s the theory. Arthur D. Burger is a director with D.C.’s Jackson & Campbell. His practice includes representing lawyers and law firms in professional responsibility matters. He is also a frequent inastructor of the D.C. Bar’s mandatory ethics course for new admittees. He can be reached at [email protected].

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