Law firm partners and associates often work together on matters, sharing duties and obligations owed to the client. However, as members of a firm, partners and associates also have duties to the firm itself and to each other.
These duties can be particularly complex when one attorney has concerns about whether another attorney at the firm is acting ethically. As discussed below, the dynamic between partners and associates can lead to tricky ethical questions.
Duty to Disclose
Law firm associates may not appreciate that they have duties to their firm if they become concerned about an error or an ethical omission they observe on the part of a partner. Indeed, the junior attorney may have disclosure obligations created by the Rules of Professional Conduct or their malpractice insurance policy.
All attorneys within a law firm have an obligation to clients to ensure that the clients are being well-served. If an attorney believes that another attorney may have failed to abide by the Rules of Professional Conduct, the first attorney may have an obligation to disclose such facts to the client or the bar.
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. Attorneys in a firm may 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 issue can become more complicated when an associate 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. This may still be so 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 staying silent can increase liability and risk not only for the law firm but for the associate.
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 5.02 of the Texas Rules of Disciplinary Conduct states that a lawyer is bound by those rules “notwithstanding that the lawyer acted at the direction of another person,” subject to certain limitations, such as when the lawyer acts pursuant to a supervisory lawyer’s reasonable resolution of an “arguable question of professional conduct.”
Just as important as disclosing these issues is identifying to whom disclosure should be made. Typically, this person will be the firm’s in-house general counsel or other designated attorney.
Duty to Supervise
Partners often rely on associates to handle legal work. Sometimes, partners rely on those associates to address matters with minimal oversight. Associates typically have cheaper hourly rates than partners, such that their legal services can help a team adhere to a budget. It is also critical that associates get good training experience in law firms, which may come from a partner delegating work to an associate.
More senior attorneys, however, likely have obligations to supervise those junior attorneys. Pursuant to Rule 5.01, a lawyer “shall be subject to discipline because of another lawyer’s violation of these rules of professional conduct if the lawyer is a partner or supervising lawyer and orders, encourages, or knowingly permits the conduct involved; or the lawyer is a partner in the law firm in which the other lawyer practices … or has direct supervisory authority over the other lawyer, and with knowledge of the other lawyer’s violation of these rules knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of the other lawyer’s violation.”
This risk does not mean that associates cannot take active or semi-managerial roles in cases. However, although one lawyer is typically not vicariously liable for the misconduct of another, “a lawyer in a position of authority in a firm … or over another lawyer should feel a moral compunction to make reasonable efforts to ensure that the office … has in effect appropriate procedural measures giving reasonable assurance that all lawyers in the office conform to these rules.” Rule 5.01, Comment 6.
In practice, this manifests itself as an obligation on partners to manage and supervise associates. Many partners will take steps to balance the associate’s need for training and experience with the partner’s duty to supervise, such as by requesting to be copied on all correspondence or meeting with the associate to review the status of the case.
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 and is co-chairwoman of Dentons’ global insurance sector team. Alanna Clair is a partner at Dentons and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”