Obsolete Date: 8/1/2006
(a) A lawyer in a firm shall make reasonable efforts to ensure that the firm has put into effect measures giving reasonable assurance that all lawyers in the firm conform to these rules.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to these rules.
(c) A lawyer in a firm shall be responsible for a violation of these rules by another lawyer in the firm if the lawyer knows or reasonably should know of the violation at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action.
Paragraphs (a) and (c) establish a responsibility for each lawyer employed in a private firm, a legal services organization, or legal department of a corporation or other organization. This includes members of a partnership and the shareholders in a law firm organized as a professional corporation and lawyers in the law department of an enterprise or government agency. Paragraph (b) includes all of the foregoing who have direct supervisory authority over another lawyer as well as sole practitioners with such authority regardless of who employs the other lawyer. Whether a lawyer has such supervisory authority in particular circumstances is a question of fact.
The extent of the duty to make reasonable efforts prescribed in paragraphs (a) and (b) can depend on the firm's structure, the nature of its practice, the nature of the relationship between lawyers not employed by the same firm, or the position of a lawyer within a firm. The duty of an associate or of a lawyer of less seniority in a firm may be minimal compared to the duty of a partner or a senior partner in a firm.
The measures to be put into effect in a firm also can depend upon its structure and practice.In a small firm, informal supervision and occasional admonition ordinarily might be sufficient. In a large firm or in practice situations in which intensely difficult ethical problems frequently arise, more elaborate procedures 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. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and no lawyer may assume that another lawyer will inevitably conform to the Rules.
Paragraph (c) addresses the duty of a lawyer who knows of a violation of these Rules in time to avoid or mitigate the effect of the violation. It presupposes that the lawyer knows or reasonably should know that the conduct is a violation of these Rules. Thus, if a lawyer knows that another lawyer in a firm misrepresented a matter to an opposing party in negotiation, both lawyers have a duty to correct the resulting misapprehension. It does not address a situation where the lawyer orders the misconduct of another. This is clearly addressed by Rule 8.4(a). Appropriate remedial action by a lawyer would depend on the lawyer's position in the firm, the immediacy of the lawyer's involvement and the seriousness of the misconduct. Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) if there was knowledge of the violation.As used in paragraph (c) "in a firm" means a member of a firm when the remedial action could be taken, not when the violation occurred.
Apart from this Rule and Rules 5.2, 5.3 and 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these Rules.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 10/18/85, 11/08/85, 12/13/85 and 01/31/86