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.
