Many attorneys spend at least a portion of their career practicing with a law firm. Given the shared risk, the resources, and the support, some attorneys may even stay in private firm practice for their entire careers.
However, working in a law firm can also create some challenges in light of the potential issues triggered when one attorney observes another attorney acting unethically. In law firms, there is often a clear distinction between partners and associates—and those attorneys’ roles—that can add to the complexity. Indeed, the dynamic between partners, who act in a supervisory capacity, and associates, who generally act at the behest of the partners, can lead to tricky ethical questions.
Partners’ Obligation to Supervise Subordinates Partners in a law firm often rely on and delegate to associates. Indeed, with the pressure to reduce the costs of legal services, partners may try to source as much work as possible to associates to adhere to strict budgets. In addition to limiting the cost of legal services, giving additional responsibility to associates can be very positive as a training tool for associates.
Notwithstanding this, partners may still have an obligation to supervise those attorneys who assist them. Pursuant to Rule 5.1(b) of the Connecticut Rules of Professional Conduct, “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.”
Further, pursuant to Rule 5.1(c), lawyers are “responsible” for another lawyer’s violation of the rules where they order or ratify the conduct involved, or where the attorney “is a partner or has comparable managerial authority … 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 reasonable remedial action.”
In practice, this manifests itself as an obligation on partners to manage and supervise associates. This does not mean that associates cannot take active or quasi-managerial roles in cases. It does mean, however, that partners may have to take additional steps to ensure compliance with this rule.
The commentary to Rule 5.1 states that “A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred.” A supervisor cannot intervene when he or she is not well informed or aware of what misconduct has occurred. Thus, many partners or supervising attorneys will take steps to have some involvement and awareness of a subordinate attorney’s work on a matter.
The answer to this risk is not to micromanage or to prohibit associates from taking active roles in cases. The appropriate level of supervision may depend on the type of matter and the other team members involved. Some supervising attorneys, for example, will request to be copied on relevant correspondence and to weigh in on strategy decisions relating to the representation. Conveying expectations to associates can also be helpful.
Duty to Disclose Separate from the duty to supervise, more junior attorneys may also have duties to disclose. For example, in situations in which a junior attorney becomes concerned about possible errors or omissions by a more senior attorney, the junior attorney may have disclosure obligations created by the Rules of Professional Conduct or the firm’s malpractice insurance policy.
This duty of disclosure generally extends to law firm attorneys who are aware of any claim or facts that might give rise to a claim, even if the error or potential error was made by another attorney. This complicated issue most often arises in the context of an associate who is aware of a partner’s malfeasance, but unaware as to whether the partner has disclosed the issue to the firm or the insurance carrier. In those circumstances, an associate who fails to disclose to the insurance carrier that he or she is aware of facts or circumstances that might give rise to a claim could find himself or herself without insurance coverage if ever sued in connection with the error, even when the error is one committed by the supervising partner and not the associate.
Some associates mistakenly believe that it is not their obligation to disclose, or they feel uncomfortable with the idea of “tattling” on the partner. But failing to shed light on these issues can increase the risk not only to the law firm but also to the associates themselves.
Associates are not always immune from liability for legal malpractice merely because they were following the orders of a supervising attorney. Associates generally have a duty to “act in a manner that benefits the firm and does not benefit himself or interests adverse to the firm.” Restatement (Second) of Agency §387 (1958). Further, Rule 5.2 of the Connecticut Rules of Professional Conduct states that a lawyer is bound by those rules “notwithstanding that the lawyer acted at the direction of another person.” Thus, junior attorneys may find that they can face liability for breaching the ethical rules even if they were just doing as a partner instructed them.
Just as important as disclosing these issues is identifying to whom disclosure should be made. In some areas, there is a risk that disclosures to anyone other than the firm’s counsel could risk a waiver of privilege. Therefore, most associates facing this issue will confirm the proper party at the law firm to whom disclosure should be made.
Law firms have the ability to create a culture that supports disclosure and can encourage their attorneys to disclose material developments, which helps unify a firm’s purpose and defenses. Attorneys attempting to handle potential errors on their own can pose significant risk to their employment and coverage, as well as the firm’s ability to help them.
It is also important for a law firm to identify to its attorneys the firm’s in-house general counsel or designated attorney so that attorneys know whom to notify and so that the privilege may be maintained.
Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chairwoman of Dentons’ global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014). Alanna C. Clair is a partner at the firm and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”