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By: Greg Fayard
In some circumstances, a California lawyer can be disciplined by the State Bar for a paralegal’s misconduct. This type of discipline was not possible under the State’s old lawyer-ethics rules. Rule 5.3 of the new rules requires attorney-managers to make sure nonlawyers—such as law students, investigators, legal assistants or paralegals—are not violating any ethical rules. A supervising lawyer, which could be an associate (so long as he or she has direct supervisory authority over the nonlawyer), can be responsible for the ethical breach of a paralegal if the lawyer is aware of an ethical violation, had a chance to avoid or mitigate the ethical lapse, but did nothing.
For example, if a paralegal is disclosing confidential client information without the client’s consent (a clear ethical breach, see Rule 1.6) and the paralegal’s supervisor knew about it, but did nothing, the supervising lawyer can be disciplined for the paralegal’s misconduct.
California lawyers, therefore, are obligated to make reasonable efforts to ensure that their law office has measures which assure that nonlawyer conduct is compatible with the professional obligations of lawyers. This directive applies to both nonlawyer employees and independent contractors. Further, under Rule 5.3, any measures ensuring nonlawyer ethics compliance should consider whether the nonlawyers have legal training.
If you have any questions or would like more information, please contact Greg Fayard at [email protected].