Ethics Tip of the Month - May 2013

Duty to Supervise: When the Cat’s away,
the Mice are Feline Fine

Brought to you by ABA ETHICSearch

 

 

The workplace is full of surprises.  For example, consider a major telecommunications company when it noticed that its computer systems were being accessed from an undetermined source in China.  After an investigation, they found that one of its computer programming developers may have been influenced by the Four Hour Workweek , by Tim Ferriss, who foresaw the outsourcing trend, and unbeknownst to his employer outsourced his programming job to China.  This same programmer also held similar jobs at other companies and was netting in the six figures before a security investigation turned up evidence that the company’s computer systems were being compromised.   At the end of the investigation, the programmer was fired, but this was after several years of excellent performance reviews remarking on his cleanly written code.   For the full story see U.S. programmer outsources own job to China, surfs cat videos. 

While this anecdote did not take place in a law firm, it illustrates the importance of supervisors monitoring the work activities of the employees they supervise.  The legal profession has long recognized the ethical obligations of lawyers to supervise their nonlawyer employees.   This obligation is codified in Rule 5.3 Responsibilities Regarding Nonlawyer Assistants of the ABA Model Rules of Professional Conduct, which states that lawyers have an ethical obligation to “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer”.   Partners with managerial authority will have heightened obligations.   

Even employees with the best of intentions do not have the perspective of a lawyer and may make practical seeming decisions that unwittingly contradict the professional obligations of the lawyers they work for.  See, e.g. In re Foster, La., 45 So.3d 1026 (2010)  (One of the five members of the management committee of a Louisiana firm publicly reprimanded for the failure to properly supervise a nonlawyer employee who had responsibility for the firm's website which suggested or implied that a former Louisiana Governor was a member of the firm, a governmental relations specialist, and a partner of the firm, when in fact he had never been a licensed Louisiana attorney).

Lawyer discipline cases brought based on violations of a lawyer’s duty to supervise often involve embezzlement or misappropriation of client finds by an employee trusted to oversee the firm accounts.  In re Bailey, 821 A.2d 851, 19 Law. Man. Prof. Conduct 290 (Del. 2003) State ex rel. Oklahoma Bar Ass'n v. Hill, 281 P.3d 1264 (Okla. 2012)   In re David, 690 S.E.2d 579 (S.C. 2010)  ; In re Trejo, 185 P.3d 1160, 24 Law. Man. Prof. Conduct 386 (Wash. 2008).   In In re Galasso, N.Y., No. 170, 10/23/12   the lawyer’s brother, the firm bookkeeper, stole millions  from the firm's accounts.   In  In re Trahant, La., No. 12-B-1435, 12/14/12 law firm  employees have engaged in fraudulent house flipping .   In Mahoning County Bar Ass'n v. Lavelle, 836 N.E.2d 1214, 21 Law. Man. Prof. Conduct 655 (Ohio 2005) 29 Law. Man. Prof. Conduct 20 A lawyer’s  staff  altered  dates on clients' documents, falsely notarized papers, and sent out phony court filings.  Sometimes nonlawyers employees will pose as lawyers.  See  In re Mopsik, 902 So. 2d 991, 21 Law. Man. Prof. Conduct 341 (La. 2005)  ; Mississippi Bar v. Thompson, 5 So. 3d 330, 24 Law. Man. Prof. Conduct 385 (Miss. 2008). 

In the context of supervising nonlawyers, the protection of confidential client information is also a concern.   See, ABA Informal Ethics 88-1526 Imputed Disqualification Arising from Change in Employment by Nonlawyer Employee  (1988) (“Under Model Rule 5.3, lawyers have a duty to make reasonable efforts to ensure that nonlawyers do not disclose information relating to the representation of lawyers’ clients while in the lawyer's employ and afterwards”); Comment [2] to Model Rule 5.3 states: …nonlawyers within firm must be given “appropriate instruction and supervision” regarding obligation of confidentiality).

For further information on a lawyer’s obligations to supervise and manage their nonlawyer legal staff see the ABA Model Guidelines for the Utilization of Paralegal Services which were adopted by the ABA House of Delegates in 1991.  Other ABA resources in this area include the ABA Standing Committee on Paralegals and the Center for Professional Responsibility’s The Paralegal's Guide to Professional Responsibility, Third Edition    (2011).© 2013 by the American Bar Association

 

Do you have a question for ABA ETHICSearch? 

It’s easy, fast and free!

Submit question here or call us at 800.285.2221. (press 8)

 

ETHICSearch is a free legal ethics research service for members of the American Bar Association provided through the ABA Center for Professional Responsibility. We are not acting as your lawyers in this matter. The research assistance we provide is not to be construed as legal advice. Furthermore, the research assistance provided is not comprehensive and the inquirer is responsible for making his or her own final judgment on the ethical and legal issues presented. Please bear in mind that the ABA Model Rules of Professional Conduct and ethics opinions are advisory only. The ethics rules, laws and court decisions of your jurisdiction are controlling.

 

Advertisement