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By: Greg Fayard
The answer to this question is yes, in certain circumstances. This is a change under the current rules of professional conduct for lawyers compared to the prior rules, which expired last October 31, 2018.
Rule 5.1 says supervising lawyers must make reasonable efforts to ensure the firm has measures to ensure all lawyers comply with the ethical rules. Such measures include policies and procedures on conflicts of interest, a calendaring system, guidelines on workloads and proper supervision of inexperienced lawyers. However, a supervising lawyer can be responsible for a subordinate lawyer’s violation of an ethical rule if the supervising lawyer ordered the violation, or knew the relevant facts and conduct and ratified it, or knew of the violative conduct at a time when its consequences could have been avoided but failed to mitigate it or take remedial action. A “supervising” lawyer is a case-by-case question of fact.
Where the potential ethical violation, however, was a reasonable resolution to a problem, or an arguable question of professional responsibility, then the supervising lawyer would not be subject to discipline for the subordinate’s ethical lapse.
The point is: supervising lawyers now have some responsibility for the ethical breaches of junior lawyers, or those they supervise. An experienced lawyer for example, who is supervising another experienced lawyer but who is practicing in a new area, could be disciplined for that equally seasoned lawyer’s ethical lapse. Rule 5.1 does not only apply to the experienced lawyer supervising a less experienced lawyer.
If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.