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Duty to supervise nonlawyers: Ignorance is not bliss
By Peter Geraghty
ABA Center for Professional Responsibility
and Susan J. Michmerhuizen
ETHICSearch Research Counsel
You are a sole practitioner with a practice that concentrates in family law. You employ two secretaries and three paralegals. You are very busy and feel the need to have the nonlawyer staff handle the day-to-day administrative tasks that keep your practice running smoothly.
You have delegated the responsibilities for managing the firm’s website to one of the paralegals. Unbeknownst to you, eager to promote the firm and blissfully unaware of the proscriptions in Rules 7.1 (Communications Concerning a Lawyer’s Services) against making false and misleading statements about the lawyer or the lawyer’s services and 7.5(d) (Firm Names and Letterheads) against stating or implying a partnership when in fact none exists, the paralegal has edited the “about the firm” page on your website, adding statements to the effect that a prominent local family lawyer who sometimes acts as co-counsel with you in discrete matters is a partner in the practice.
What are your obligations to supervise your nonlawyer employees?
I. The duty to supervise
Subparts (a) and (b) of Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) of the ABA Model Rules of Professional Conduct state:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner 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 the person’s conduct is compatible with the professional obligations of the lawyer; and
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.
Subpart (c) of the Rule provides that a lawyer shall be responsible for the conduct of the nonlawyer who engages in conduct that would violate the professional obligations of the lawyer if the lawyer orders or ratifies the conduct or if the lawyer who has supervisory authority knows of the conduct “at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
See also the restatement (Third) of the Law Governing Lawyers Section 11 (4) (2000). An excerpt from the first paragraph of comment (f) to this section of the Restatement states:
f. Responsibility for nonlawyers in a law firm. Duties corresponding to those of a lawyer with respect to other firm lawyers exist with respect to supervising nonlawyers in a law firm … Supervision of a nonlawyer must often be more extensive and detailed than of a supervised lawyer because of the presumed lack of training of many nonlawyers on legal matters generally and on such important duties as those on dealing properly with confidential client information (see § 60, Comment d) and with client funds and other property (see § 44), which may be different from duties generally imposed in nonlaw practices and businesses …
Without adequate supervision, employees can engage in conduct that creates “delicate” situations for their employers. A recent example from the nonlegal world shows just how delicate these situations can get. Earlier this year a major telecommunications company noticed that its computer systems were being accessed from an undetermined source in China. After an investigation, it found that one of its computer programming developers had outsourced his programming job to a programmer in 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.”
In the law firm context, even employees with the best of intentions do not have the legal training and familiarity with the rules of professional conduct that a lawyer has and may make 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 that 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 based on violations of a lawyer’s duty to supervise often involve embezzlement or misappropriation of client funds by an employee trusted to oversee the firm accounts. In re Bailey, 821 A.2d 851, (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, (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, (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, (La. 2005); Mississippi Bar v. Thompson, 5 So.3d 330, (Miss. 2008).
While supervising nonlawyers, lawyers must take steps to ensure that nonlawyer staff understand their obligations to protect confidential client information. 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 clients while in the lawyer’s employ and afterward”); Comment  to Model Rule 5.3 states: … nonlawyers within firm must be given “appropriate instruction and supervision” regarding obligation of confidentiality.
Conflicts of interest and confidentiality concerns can also arise when non legal personnel move from one firm to another. For a discussion of these issues, See ABA Formal Opinion 88-1526 and the articles titled “Screen Nonlawyer Employees for Conflicts of Interest” and “Screen Nonlawyer Employees for Conflicts of Interest: Part 2” that appeared in the June and July 2012 issues of YourABA.
Social media can also be an area of concern, particularly if the nonlawyer personnel were to post confidential client information on their social media pages. For a discussion of confidentiality concerns in this context, See the April 2013 ETHICSearch Ethics Tip of the Month, “Is that egg on your Facebook?”
Rule 5.3 also addresses a lawyer’s obligations to adequately supervise nonlawyers in the context of outsourcing, including situations where the nonlawyers are located in foreign countries. In August of 2012, the ABA House of Delegates approved the ABA Ethics 20/20 Commission’s recommendation in Report 105(c) to add paragraphs 3 and 4 to the Comment to Rule 5.3 An excerpt from Comment  states:
… Nonlawyers Outside the Firm
A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client.Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.
The comment goes on to explain that a lawyer would have an obligation to evaluate whether the legal and ethical requirements of the jurisdictions to which the services will be outsourced are compatible with the professional obligations of the lawyer.
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). See also the chapter titled “Supervision of Nonlawyers” (last updated in 2012) as it appears at page 91:201 of the ABA/BNA Lawyers’ Manual on Professional Conduct, and the annotations to Rule 5.3 as they appear in the seventh edition of the ABA Annotated Model Rules of Professional Conduct (2011).
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