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Commonwealth of Massachusetts


February 1999

THY BROTHER’S KEEPER

Disciplinary Liability for Failure to Supervise

by Constance V. Vecchione

First Assistant Bar Counsel

Lawyers faced with disciplinary complaints about their conduct will on occasion try to avoid liability by blaming another employee (or former employee!) of the law firm. "My associate was supposed to file the notice of appeal." "My secretary didn’t give me the message." "My bookkeeper didn’t reconcile the trust account."

Effective January 1998 with the adoption of the Massachusetts Rules of Professional Conduct, two new rules, Mass. R. Prof. C.  5.1 and 5.3, now clarify issues relating to lawyers’ responsibility for failing to oversee the conduct of their partners, associates, or other staff such as secretaries, paralegals, and bookkeepers. A related rule, Mass. R. Prof. C.  5.2, deals with the responsibility of associates for misconduct committed at the direction of a senior or supervisory lawyer. However, in each instance, the new rule only codifies what has always been the interpretation of the former disciplinary rules by Bar Counsel, the Board of Bar Overseers, and the Supreme Judicial Court.

Supervisory Responsibility, In General

Rule 5.1, entitled "Responsibility of a Partner or Supervisory Lawyer," requires, first, that partners make reasonable efforts to ensure that the firm has measures in effect to assure that all lawyers in the firm conform to the Rules of Professional Conduct and, second, that a lawyer having direct supervisory authority over another lawyer make reasonable efforts to ensure that the other lawyer conforms to these rules. The rule further provides that a lawyer is responsible for another lawyer’s violation of the rules if he or she either orders or ratifies the conduct involved or knows of the conduct at a time when its consequences could be avoided or mitigated but fails to take remedial action. Rules 5.3, entitled "Responsibilities Regarding Nonlawyer Assistants," makes the same requirements of partners and supervisory lawyers as to conduct of nonlawyer support staff that would violate the rules of professional conduct if engaged in by a lawyer.

While there were no comparable rules under the old disciplinary code, lawyers were in fact disciplined prior to 1998 for failure to supervise employees, usually based either on neglect of a client matter for which the lawyer was responsible or on other specific underlying violations such as inadequate trust account recordkeeping.

Duties of Partner or Supervisory Attorney to Other Lawyers

Disciplinary decisions in Massachusetts and other jurisdictions imposing vicarious disciplinary liability upon partners or supervisory lawyers for the conduct of their partners or associates tend to follow a "knew or should have known" standard. These cases generally have involved either repeated misconduct by the other attorney, or gross indifference and neglect by the partner or supervisory lawyer in situations in which minimal attention would have brought the problem to light. Some examples are Matter of Saab, 406 Mass. 315, 547 N.E.2d 919 (1989)(suspension for, among other matters, failure to supervise or monitor in a divorce appeal both his own inexperienced associate and an affiliated attorney from another firm; prior discipline for failure to supervise another associate); Matter of Newton, 12 Mass. Att'y Disc. R. 348 (1996) (public reprimand for failure to ensure that trust account was appropriately maintained by son/partner in circumstances where the respondent was aware of shortages); and Admonition 96-64, 12 Mass. Att'y Disc. R. 708 (1996) (failure to take appropriate steps to protect the interests of a personal injury client and or to have in place adequate systems to supervise work delegated to associate).

The comments to Rule 5.1 suggest that the measures required to fulfill the obligations imposed by this rule can depend on the firm’s structure and the nature of its practice. In a small firm, "informal supervision and occasional admonition might be sufficient." In a large firm, or in types of practices in which difficult ethical dilemmas are common, a more formal structure, such as an internal ethics committee, may be necessary.

Duties of Lawyers to Supervise Nonlawyer Personnel

Lawyers generally will not be disciplined for isolated errors or improprieties by support staff that the lawyer could not have guarded against or prevented. Rather, discipline instead tends to be imposed in situations where the failure to supervise the nonlawyer employee in the particular matter giving rise to the disciplinary proceedings was persistent or the result of systemic inappropriate office procedures.

Discipline in this area is not uncommon, in Massachusetts and elsewhere. Among the Massachusetts cases are: Matter of Jerome, 9 Mass. Att'y Disc. R. 176 (1993) (public censure with conditions as to respondent who entrusted all responsibility for recordkeeping for trust and operating accounts to secretary whose work he did not review and who, unknown to the attorney, embezzled trust funds) and Private Reprimand 90-2, 6 Mass. Att'y Disc. R. 391 (1990) (attorney, among other matters, delegated responsibility for investigating personal injury claim and negotiating with insurer to nonlawyer employee who neglected the case and made misrepresentations to the client concerning the status).

The comments to Rule 5.3 note that lawyers should give their nonlawyer assistants appropriate instructions concerning their ethical obligations, particularly as to confidentiality, and should be responsible for their work product. This suggestion is very important. Particularly in the area of trust accounting, problems frequently arise from the fact that bookkeeping is delegated to undertrained staff. To the extent that the lawyers themselves may not have adequate experience in accounting to train the support staff, outside help should be obtained.

Obligation of Lawyer Subordinates

While sympathetic to the dilemma faced by a young lawyer whose supervisor is engaged in an unethical practice, courts and disciplinary agencies in general have been emphatic about the duty of associates to think for themselves. "I was just following orders" is not a defense.

Mass. R. Prof. C.  5.2 codifies what was true in this jurisdiction under the former disciplinary rules by stating that a subordinate lawyer is bound by the Rules of Professional Conduct notwithstanding the fact the lawyer acted at the direction of another. Two cases on point are Private Reprimand no. 92-9, 8 Mass. Att'y Disc. R. 284 (1992) (on employer’s instructions because client had not paid, associate did not appear for court hearing despite court’s demand that someone from office be present; associate received private reprimand and employer received public censure); Private Reprimand no. 89-24, 6 Mass. Att'y Disc. R. 379 (conflict of interest; associate received admonition and senior partner was suspended).

The subordinate attorney does not, however, violate the rules if he or she acts pursuant to a supervisory lawyer’s "reasonable resolution of an arguable question of professional duty." If the matter seems doubtful, however, associates may wish suggest to their supervisors that guidance be sought either from the Office of Bar Counsel during call-in hours or from the appropriate bar association committee on professional ethics.

 



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