My Colleague’s Keeper: Duties of Subordinate Attorneys

Our prior posts in this three-part series have explored the benefits of the law firm structure and the responsibilities of supervising attorneys at a firm.  In the conclusion of this series, we turn to another integral part of a law firm’s structure: subordinate attorneys and their duties and responsibilities with regard to taking directives from supervisors when ethical questions are implicated.

Subordinate attorneys are bound to follow all ethical rules, even if their supervisors fail to do so.  Rule 5.2(a) is clear that a subordinate lawyer is bound by the Rules of Professional Conduct even if the lawyer acts at the direction of another person.  Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, this fact may be relevant in determining whether a lawyer had the knowledge required to render the conduct a violation of the Rules.

For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document’s frivolous character.  If the subordinate lawyer determines that the supervising lawyer is asking her to engage in conduct that would clearly result in a violation of the Rules, then the subordinate must refuse to participate or assist in the matter, even if refusal may result in the subordinate’s dismissal from the firm.

Given this extremely high standard, an exception to this rule comes into play for close ethical calls.  In such situations, subordinate lawyer does not violate the Rules if the she acts in accordance with the supervising lawyer’s “reasonable resolution” of this “arguable” question of professional duty.  For example, if there is a genuine question about whether the interests of current clients conflict under Rule 1.7, the subordinate lawyer may rely on the supervising lawyer’s reasonable resolution of the question.

In addition, the Rules also require any attorney, including a subordinate, to report any other attorney, including her supervisor, to an appropriate disciplinary agency if the subordinate “knows” the other lawyer has committed an ethics violation that raises a “substantial question” as to that lawyer’s honesty, trustworthiness or fitness to practice law.  This requirement applies even when the reporting lawyer risks implicating herself in an ethics breach.

Some tips for newer attorneys to ensure they are contributing maximally to their firm while simultaneously staying in line with the ethical rules:

  • Ban blindness. If you are dragged into the fray when your boss ignores the ethics rules, don’t assume your “second chair” status relieves you from your own professional obligations.  If, at the time the questionable actions were taken, it was clear these actions were in violation of the Rules, a subordinate lawyer cannot blindly follow the directions of a supervising lawyer and claim “I was just following orders” to gain immunity.
  • Talk out the toss ups. Determining if a strategy taken at the behest of a supervisor is a “reasonable resolution” of an “arguable” ethics question can sometimes be tricky, particularly for a less experienced lawyer.  To begin, discuss your concerns with your supervisor.  If, after this conversation, you are still worried that the supervisor’s solution is not “reasonable”, reach out to other partners, and, if your firm has one, the designated ethics partner or panel.  If your concerns persist, you may want to consult a professional responsibility lawyer.