Practice boundaries and structure - Responsibilities of part...

Learning Outcomes

After reading this article, you will be able to identify and apply the rules governing the responsibilities of partners, managers, supervisory lawyers, and subordinate lawyers in law practice. You will understand the duties to implement compliance systems, supervise others, address misconduct, and recognize the limits of subordinate reliance on supervision. You will be able to answer MPRE-style questions on vicarious responsibility and ethical obligations within law firms.

MPRE Syllabus

For the MPRE, you are required to understand the ethical duties related to law firm structure and the responsibilities of lawyers in various roles. This article covers:

• The definition of "law firm" and "partner" for MPRE purposes.
• The obligations of partners and managers to establish compliance systems.
• Supervisory lawyers’ duties to oversee subordinate lawyers and non-lawyers.
• The liability of lawyers for misconduct ordered, ratified, or not remediated.
• The responsibilities and defenses available to subordinate lawyers.
• The limits on delegation and the "Nuremberg defense."
• The consequences of failing to supervise or remediate misconduct.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is a partner or manager in a law firm required to do?
   1. Personally review every document filed by subordinates.
   2. Make reasonable efforts to ensure the firm has measures to ensure compliance with the Rules.
   3. Supervise only lawyers, not non-lawyer staff.
   4. Only act if a violation has already occurred.
2. A subordinate lawyer follows a supervisor’s direction on an arguable question of professional duty. The supervisor’s answer is reasonable, but later found to be incorrect. Is the subordinate subject to discipline?
   1. Yes, always.
   2. No, if the supervisor’s resolution was reasonable.
   3. Yes, unless the subordinate objected in writing.
   4. No, if the subordinate did not know the rule.
3. If a partner learns that a supervised lawyer has committed a violation, when is the partner subject to discipline?
   1. Only if the partner ordered the conduct.
   2. Only if the partner ratified the conduct.
   3. If the partner fails to take reasonable remedial action while consequences can be avoided or mitigated.
   4. Never, unless the partner was directly involved.
4. Which of the following is NOT a defense for a subordinate lawyer accused of a violation?
   1. Following a supervisor’s reasonable resolution of an arguable question.
   2. Acting under direct orders on a clear rule.
   3. Not knowing the rule existed.
   4. None of the above.

Introduction

Lawyers in law firms and other organizations operate within a defined structure that imposes specific responsibilities on partners, managers, supervisors, and subordinates. The Model Rules require lawyers in positions of authority to implement systems to ensure compliance with ethical obligations, and to supervise the conduct of other lawyers and non-lawyer staff. Subordinate lawyers must also comply with the Rules, but may sometimes rely on a supervisor’s reasonable interpretation in close cases. Understanding these responsibilities is essential for answering MPRE questions on vicarious discipline and law firm practice.

Key Term: Law Firm
An association of lawyers authorized to practice law, including partnerships, professional corporations, sole proprietorships, legal services organizations, or legal departments within organizations.

Key Term: Partner
A member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.

Responsibilities of Partners and Managers

Partners and lawyers with comparable managerial authority must make reasonable efforts to ensure that the firm has measures in place to provide reasonable assurance that all lawyers and non-lawyers in the firm comply with the Rules of Professional Conduct.

This includes:

• Implementing policies and procedures for conflict checks, confidentiality, and supervision.
• Training staff and lawyers on ethical obligations.
• Monitoring compliance and updating systems as needed.

Failure to establish such systems can result in discipline, even if no actual violation occurs.

Key Term: Managerial Authority
The authority held by partners or others with comparable responsibility to direct the professional work of a law firm or legal department.

Duties of Supervisory Lawyers

A lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the Rules. This applies to:

• Assigning work only to those competent to perform it.
• Providing guidance and oversight.
• Intervening if misconduct is suspected or discovered.

Supervisors are not required to guarantee perfect compliance, but must take reasonable steps to prevent violations.

Key Term: Supervisory Lawyer
A lawyer who has direct authority to oversee the work of another lawyer or non-lawyer employee.

Liability for Misconduct: Ordering, Ratifying, or Failing to Remediate

A lawyer is subject to discipline for another’s violation if the lawyer:

• Orders the misconduct.
• With knowledge of the specific conduct, ratifies the misconduct.
• Fails to take reasonable remedial action when the consequences of the misconduct can be avoided or mitigated.

This applies to both lawyers and non-lawyers under the lawyer’s supervision.

Key Term: Reasonable Remedial Action
Steps a lawyer with authority must take to prevent or mitigate the consequences of misconduct once aware of it, if possible.

Responsibilities of Subordinate Lawyers

Subordinate lawyers must comply with the Rules, even when acting under supervision. However, a subordinate is not subject to discipline if:

• The subordinate acts in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty.

If the ethical issue is clear, the subordinate cannot escape responsibility by claiming to have followed orders.

Key Term: Subordinate Lawyer
A lawyer who acts under the direction or supervision of another lawyer.

The Limits of Delegation and the "Nuremberg Defense"

Supervisors cannot delegate away their responsibility for compliance. Subordinates cannot defend a violation by claiming they were "just following orders," unless the supervisor’s answer was reasonable and the question was genuinely arguable.

If the rule is clear, both supervisor and subordinate may be disciplined for a violation.

Worked Example 1.1

A law firm partner instructs a junior associate to file a complaint that the partner knows is frivolous. The associate, unsure but trusting the partner, files the complaint. Who is subject to discipline?

Answer:
Both the partner and the associate are subject to discipline. The partner ordered the violation. The associate cannot rely on the supervisor’s direction because the rule against frivolous filings is clear, not arguable.

Worked Example 1.2

A supervising attorney learns that a paralegal under her supervision has been disclosing confidential client information. The supervisor discovers this while there is still time to prevent further harm but does nothing. Is the supervisor subject to discipline?

Answer:
Yes. The supervisor failed to take reasonable remedial action when it could have mitigated the consequences of the misconduct.

Worked Example 1.3

A subordinate lawyer is unsure whether a certain disclosure to opposing counsel is required. The supervisor reviews the issue, which is genuinely ambiguous, and instructs the subordinate to proceed. The subordinate follows the instruction, but later it is determined that the disclosure was required. Is the subordinate subject to discipline?

Answer:
No. If the supervisor’s resolution was reasonable and the question was arguable, the subordinate is not subject to discipline.

Exam Warning

On the MPRE, do not assume that a subordinate lawyer is shielded from discipline simply by following orders. The defense applies only if the supervisor’s answer was reasonable and the issue was genuinely arguable—not when the rule is clear.

Revision Tip

When reviewing practice questions, always identify whether the lawyer in question is a partner, manager, supervisor, or subordinate. The duties and potential liability differ for each role.

Key Point Checklist

This article has covered the following key knowledge points:

• Law firm structure includes partnerships, corporations, and legal departments.
• Partners and managers must implement compliance systems for ethical rules.
• Supervisory lawyers must oversee both lawyers and non-lawyers.
• Lawyers are subject to discipline for ordering, ratifying, or failing to remediate misconduct.
• Subordinate lawyers must comply with the Rules, but may rely on a supervisor’s reasonable answer to an arguable question.
• The "just following orders" defense does not apply to clear rule violations.
• Failure to supervise or remediate can result in discipline, even without direct involvement.

Key Terms and Concepts

• Law Firm
• Partner
• Managerial Authority
• Supervisory Lawyer
• Reasonable Remedial Action
• Subordinate Lawyer