Standards for the Provision of Civil Legal Aid

Standard 6.3 on Responsibility for the Conduct of Representation

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Standard

A provider is responsible for the conduct of representation undertaken by its practitioners and should supervise the work to assure that each client is competently represented.

Commentary

The responsibility and authority for supervision of representation are grounded in the ethical and legal responsibility the provider assumes for each accepted case. For staff providers, this institutional responsibility arises from the relationship that is created as a contract between the provider and the client.

"It must be recognized that an indigent person who seeks assistance from a legal services office has a lawyer-client relationship with its staff of lawyers which is the same as any other client who retains a law firm to represent him. It is the firm, not the individual lawyer, who is retained . . . . Staff lawyers of a legal services office are subject to the direction of and control of senior lawyers, the chief lawyer, or the executive director (if a lawyer), as the case may be, just as associates of any law firm are subject to the direction and control of their seniors. Such internal communication and control is not only permissible but salutary. It is only control of the staff lawyer's judgment by an external source that is improper."

In 2002, the Model Rules of Professional Conduct were amended to clarify that lawyers who possess "comparable management authority" to law firm partners are required to "make reasonable efforts" to ensure that the provider has measures in effect to give reasonable assurance that all practitioners conform to the rules of Professional Conduct. The fact that primary responsibility for cases rests with the provider does not absolve the individual practitioner from the duty to represent clients competently. Rather, it creates the obligation for the provider to assure reasonable supervision and for the practitioner to accept that supervision. Supervision of work by senior attorneys of the provider is not improper interference with the independent judgment of individual practitioners, but is mandated by ethical considerations.

Supervision of less experienced practitioners is necessary to assure that clients' interests are not jeopardized by inexperience and to facilitate development of proficient practitioners. Effective supervision includes the obligation to withdraw legal work assignments from ineffective practitioners and to assign the work elsewhere, if necessary.

The most valuable use of supervision is to teach. Effective supervision by experienced managers can help less experienced practitioners operate in an efficient manner and competently handle increasing levels of work. More experienced practitioners also benefit from supervision to assure the most effective use of their skills and expertise to assist clients. Supervisors can help direct practitioners to appropriate sources of support and training.

The degree to which the provider is responsible for the conduct of representation by an outside attorney to whom it has referred a case is a function of the contractual relationship between the attorney and the provider and with the client. Generally, a provider is not directly responsible for the conduct of the representation, unless it is by agreement part of the attorney-client relationship between the outside attorney and the client and has agreed to be responsible for the representation. Considerations regarding when it is appropriate for a provider to assume such responsibility are discussed in the commentary to Standard 2.7 on Integrating the Resources of the Legal Profession and Involvement of Members of the Bar.