Randy Evans and Shari Klevens, Dentons partners. ()
Most law firms operate within standard models for assignment and supervision of work. Partners and senior attorneys are assigned to delegate and supervise the work of junior associates. This is a model that typically works simply and well, without incident. However, not all attorneys focus on the fact that both the senior and junior attorneys may have obligations to observe, and to report, ethical obligations of the other.
Here are some tips for how both partners and associates in firms or partnerships can comply with their ethical duties to supervise others and disclose potentially risky behavior by others.
It is not unheard of for partners to respond to fee pressures from clients by staffing matters with junior attorneys adhering to a strict budget. Engaging more junior attorneys and staff members can be a good solution, not only because it is an effective way to manage expense, but also because it helps train more junior members of the bar.
Senior attorneys generally have obligations to supervise those attorneys and staff 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), a lawyer is “responsible” for another lawyer’s violation of the rules where that lawyer “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. Most senior attorneys will not permit associates to proceed on matters without any supervision at all. However, this does not mean that associates cannot take active or quasi-managerial roles in cases.
The comments to Rule 5.1 provide some additional guidance: “Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers engaged in the matter. … 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.”
Partners and senior attorneys may also want to take their supervisory duties seriously because, in some instances, associates may have the ability to bind the law firm for malpractice purposes. For example, if an associate sends an email with a legal opinion to a client and the opinion is incorrect, the firm could be liable. The answer is not to micromanage or to prohibit associates from taking active roles, but many senior attorneys will, at a minimum, supervise and weigh in on strategy decisions relating to the representation. Many senior attorneys or partners will also convey their expectations to associates, both with regard to practical expectations and ethical expectations.
Even though partners have a duty to supervise, that reality does not relieve more junior attorneys of their own obligations. For example, all attorneys within a law firm have a general obligation to clients to ensure that the clients are being well-represented. If an attorney believes that another attorney may have failed to abide by the Rules of Professional Conduct, the attorney may have an obligation to disclose such facts to the client or the bar, notwithstanding how junior that attorney is.
Further, attorneys have an obligation in applying for or renewing insurance coverage to disclose all claims or potential claims; if this disclosure is undertaken by the law firm on behalf of all of the firm’s attorneys, it can only meet this obligation when it is aware of all claims or potential claims its attorneys are facing.
All this is to say that attorneys in a firm have a general duty to disclose to the firm those risks, mistakes, and circumstances that could give rise to a malpractice claim. This is not only for the benefit of the law firm but also for the attorney, and extends to associates as well as partners.
This complicated issue can arise 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 they are ever sued in connection with the error.
Some associates are concerned with the idea of “tattling” on the partner. But those associates should know that they are increasing the risk not only to the law firm but also to themselves.
Some associates mistakenly believe that they are immune from liability for legal malpractice merely because they were following the orders of a supervising attorney. However, Rule 5.2 of the Connecticut Rules of Professional Conduct provides that a “lawyer is bound by the Rules of Professional Conduct notwithstanding that that lawyer acted at the direction of another person.”
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.