December 2013 | The New Partner Issue
The Effects of Mentoring on the Duty to Supervise
The legal profession places greater emphasis on the importance of mentorship now than when Michele Jochner, a partner at Chicago-based Schiller DuCanto & Fleck LLP, began practicing law more than 20 years ago. As a legal scholar, expert writer, and educator to law students and attorneys, Jochner recognizes the importance of helping “young lawyers make the transition from backpacks to briefcases, and then from associates to partners”. (Jochner will also be a guest speaker on the topic at the ABA Young Lawyers Division New Partner’s Conference in February 2014.)
Although the idea of mentoring has recently become more popular, the concept is not new. In the early 1800s, for example, the art of practicing law was primarily taught through apprenticeships. The argument can be made that apprenticeships have evolved into the mentorship and supervisory practices currently in place at US law firms. A lawyer’s responsibilities to supervise and mentor present very distinct challenges and responsibilities; however, they both invoke the same traditional principle of one attorney helping another to achieve his or her potential.
Rule 5.1 of the Model Rules of Professional Conduct requires law firms and lawyers to make “reasonable efforts” to establish internal policies and procedures designed to provide “reasonable assurance” of conformity with the Rules requiring adequate supervision. The ABA Commentary on the RPC 5.1 (see Comments 2 and 3) indicates that in a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems will ordinarily suffice. In a large firm, or in practice situations where difficult ethical problems frequently arise, more elaborate measures may be necessary. Where the rules require supervising attorneys to implement policies for resolving conflict of interests, accounting for client funds, and ensuring that inexperienced lawyers are supervised; a mentor can go beyond the Model Rules and develop a meaningful and substantive relationship with the younger attorney where the younger attorney can, as Jochner describes, “grow and blossom into members of the profession that we can all be proud of.”
Although law firms approach their obligations under the Model Rules differently, the prospect of incurring liability can be a source of anxiety for a new partner or senior attorney. In response, some law firms have created formal and informal programs to help younger attorneys transition into their new role. For instance, Jochner’s firm uses a new associate shadowing program to remain compliant with the RPC.
“The shadowing program provides junior attorneys with an informal supervision process that allows for the newer associates to question the more experienced lawyers in the firm, and allows the partners to ensure that the newer associates are understanding and conforming to all the rules and procedures,” she said. Jochner’s firm also has monthly mentoring lunches where partners and associates in the firm share experiences in an informal setting. According to Jochner, this practice also helps her firm comply with the RPC, as the associates can discuss issues and ask the partners questions about cases, professionalism, or the general practice of law.
A strong mentoring and support system fosters a Rule 5.1 compliant environment, and the practice of mentorship serves as the underpinning to any successful supervisory practice. The ethical atmosphere in a law firm will also influence the conduct of its members.
“Our firm operates on a team concept, as associates and partners work closely together to achieve the optimal outcome for our client,” Jochner said. This synergy is important, as Rule 5.1 imposes disciplinary liability for a supervisor who knows that a violation has occurred and did not act, or failed to prevent a foreseeable consequence of misconduct. Depending upon the circumstance, the partner or senior associate’s failure to intervene or take appropriate action can lead to civil or criminal liability on behalf of their subordinate. Indeed, a law firm with a solid mentoring plan can distinguish itself by exemplifying a commitment to fostering connections between its attorneys which in turn bridge the gaps in a junior lawyer’s practical knowledge of the law. The end result is an increase in the firm’s effectiveness while leveraging the strengths of its members to better serve clients and limiting issues of liability.
Jochner said that in her experience, younger associates can best learn from those who have been practicing for many years. “There is no substitute for practical experience,” she said, in a testament to the traditional apprenticeship form of studying law. “There is only so much that can be learned from a book. Much of the day-to-day knowledge comes from being in the trenches and learning how to navigate turbulent waters.” She acknowledges that newer associates have a limited reference point for navigating the practice of law and the nuances involved in the dynamics of their caseload. More so than a supervisor, a mentor can help fill these gaps. Jochner credits her own success to having several mentors, including her mother and her dear friend, the former Illinois Supreme Court Chief Justice Mary Ann McMorrow. Chief Justice McMorrow was Jochner’s first role model in the legal profession and taught her what a lawyer should be: smart, strong, and hard-working, while always compassionate, kind, giving, and helpful .
As encouraged by the Model Rules, law firms should at minimum provide informal supervision or periodic reviews in compliance with the Model Rules. A mentoring program within a law firm will also help provide better oral and written advocacy skills, general business skills, and may even reduce attrition in the firm. Jochner attests to the fact that a reassuring word from a partner will help to “build the new attorney’s confidence,” and sharing personal insight can help with team-building and ethical awareness. In this sense, mentoring reaches beyond the boundaries of supervising a subordinate attorney or non-attorney. Having a mentorship program will undoubtedly open informal doors of communication which fosters an environment where new partners and senior lawyers of a firm can be successful in meeting its supervisory obligations under the Rules of Professional Conduct.
Vanessa Cotto is an associate attorney practicing in mass torts representing plaintiffs in pharmaceutical litigation actions in Orlando, Florida.
Kerri-Ann Bent is a New York State based attorney currently working at an investment bank. She is also an active member of the American Bar Association Young Lawyers Division.
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