My Colleague’s Keeper – Benefits & Pitfalls of Law Firm Structures (Part II)

Monitoring Matters: In the first portion of this series, we examined how a recent New Jersey case highlighted the benefits of the law firm structure. Next we explore the risks, and responsibilities, of a supervising attorney at a law firm. Often, a good team is the most critical component of producing excellent services.  A well-trained, productive, and properly supervised staff is undoubtedly an asset, but delegating to your team can present its own challenges.  With this in mind, it is important for any attorney with supervisory capacity to keep a close eye on co-workers for, under the Model Rules of Professional Conduct, the attorney remains liable for the ultimate work product.

A recent PLM post addressed best practices for supervising non-legal staff (i.e. paralegals), but, as the recent New Jersey case discussed last week illustrated, the interplay between attorneys at a firm is also not without ethical risk.

The Model Rules task experienced lawyers with ensuring new and inexperienced lawyers receive appropriate training and supervision. The Model Rules define the supervising lawyer as “a partner in a law firm” or “one with comparable managerial authority,” and impose three key duties.

First, the supervising lawyer must establish internal policies and procedures designed to provide “reasonable assurance” that all lawyers in the firm comply with the Model Rules.  These policies and procedures should include those designed to ascertain and resolve conflicts of interest, identify deadlines by which actions must be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised.  Other measures will depend upon the firm’s structure and nature of its practice groups.  A small firm of experienced lawyers is likely to be able to comply using informal supervision and periodic review of compliance with the required systems, while in a larger firm or a practice area in which ethical problems frequently arise, more sophisticated measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee.  Indeed, the comments to Rule 5.1 go so far as to describe a hypothetical situation where a supervising lawyer can be held responsible for failure to institute reasonable procedures and policies, even if the supervising lawyer neither committed the violation nor knew of its existence.

Second, the supervising lawyer must ensure that lawyers under direct supervision comply with the rules of professional conduct.  Whether a lawyer has supervisory authority in particular circumstances is a question of fact.  Partners, and attorneys 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 usually also has supervisory responsibility for the work of other firm lawyers engaged in that matter.

Lastly, a supervising lawyer is required to take remedial measures when she encounters a rule violation by a lawyer under his or her supervision.  Appropriate remedial action hinges on the immediacy of that lawyer’s involvement, and the seriousness of the misconduct.  Further, a supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred.  For example, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party during a negotiation, the supervisor and the subordinate both have a duty to correct the resulting misapprehension.

Rule 5.1 is a significant keystone for all supervising attorneys.  After all, making sure those you supervise are on track with the Model Rules makes good business sense, and the penalties for failure to supervise can be severe.  Here are some tips for supervising attorneys to maintain ethical compliance with regard to the monitoring of subordinate attorneys.

Take time to train.  Establishing the best possible employee-training program may take time, effort, and expense, but in the long run, it will lead to consistent rule compliance while improving your bottom line and firm “image.” Addressing the subject of conduct in this training, including the responsibilities of supervising attorneys and their charges, will help to maintain appropriate expectation levels and conduct.  Indeed, some courts have interpreted the duty of competence, as described in Model Rule 1.1, to include the training and supervision of subordinate as well as seasoned attorneys.  Continuing legal education regarding this topic is also a good idea; this way each member of your team will appreciate their duty to report and will know how an ethics violation when they spot one.

Regulate reporting.  Establish a system that encourages attorneys, no matter what their seniority, to recognize ethics violations and feel comfortable making an ethics report about a colleague.  Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems.  In any firm, the ethical atmosphere of the workplace can shape the conduct of the entire team, and a firm in which all team members  ethics violations

Pick a pundit.  Make sure the confidential reporting system is directly overseen by a designated senior partner or special committee.  This will ensure confidentiality and consistency with regard to how the firm deals with reported ethics violations.