Legal Ethics Corner: The Duty to Supervise New and Experienced Attorneys

By David Wolf, Law Office of David A. Wolf

The duties of California attorneys are set forth in the State Bar Act (Bus. and Prof. Code § 6000, et seq.), the California Rules of Professional Conduct, and case law. The California Rules of Professional Conduct require us to perform legal services with “competence.” (Rule 3-110.)

“Competence” in providing legal service requires the application of diligence, learning and skill, mental, emotional, and physical ability “reasonably necessary for the performance of [the] legal service.” (Rule 3-110.) While not specifically stated in Rule 3-110, California courts have interpreted the duty of competence to include the training and supervision of subordinate attorneys. The training and supervision requirements certainly apply to new attorneys, but arguably apply to seasoned attorneys as well.

While Rule 3-110 does not expressly address the supervisory duties of law firm shareholders, partners, in-house counsel, or other attorneys acting in a managerial capacity, the American Bar Association Model Rules of Professional Conduct (MRPC) provide additional guidance. MRPC 5.1 (a) – (c) requires implementation of systems and procedures within a law practice to help ensure compliance with applicable rules, actual compliance with those rules, and implementation of remedial measures in the event of a rule violation. MRPC 5.1 states:

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
(MRPC 5.1, emphasis supplied.)

MRPC 5.2 provides further guidance for supervisory and subordinate attorneys:

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
(MRPC 5.2, emphasis supplied.)

MRPC 5.1 and 5.2 are embodied in California’s Proposed Rules of Professional Conduct pending before the State Bar Board of Governors and Supreme Court at “Chapter 5. Law Firms and Associations.”

For a more exhaustive treatment of this subject, see Ethics in Brief, San Diego County Bar Association “Vicarious responsibility: the duty to train and supervise” by Timothy Casey and the comments contained in California’s Proposed Rules of Professional Conduct which can be found on the state bar website.

About the author:

legal-ethic-bioDavid Wolf, Law Office of David Wolf, is the Chair of BASF’s Legal Ethics Committee.