Standard 6.4 on Responsibility for the Conduct of Representation
Standard
In addition to a practitioner's ethical duties relating the representation, a legal aid organization also is responsible for the representation and assistance undertaken by its practitioners and should supervise the work to ensure that each client receives high-quality representation or assistance. Supervision can be done in-person, remotely, or using a combination of the two.
Commentary
The responsibility and authority for supervision of representation are grounded in the ethical and legal responsibility the organization assumes for each accepted case. For legal aid organizations, this institutional responsibility arises from the relationship that is created as a contract between the organization and the client.
According to the ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 334, "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 that 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."
The ABA Model Rules of Professional Conduct clarify that lawyers who possess "comparable management authority" to law firm partners are required to "make reasonable efforts" to ensure that the organization has measures in effect to give reasonable assurance that all practitioners conform to the rules of professional conduct in their jurisdiction.The fact that primary responsibility for cases rests with the organization does not absolve the individual practitioner from the duty to represent clients competently. Rather, it creates the obligation for the organization to ensure reasonable supervision and for the practitioner to accept that supervision. Supervision by senior attorneys of the organization is not improper interference with the independent judgment of individual practitioners but may be mandated by applicable ethical considerations. Indeed, a lawyer with management authority may be responsible for another lawyer's violation of the rules of professional conduct if (1) the lawyer orders, or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action.
Supervision of less experienced practitioners is necessary to ensure that clients' interests are not jeopardized by inexperience and to facilitate development of proficient practitioners. Such supervision is necessary not only to protect the client's interest, but to also enhance practitioners' skills for more effective representation of future clients. 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 ensure the most effective use of their skills and expertise to assist clients. Supervision at all levels promotes staying abreast of legal concepts and skills as laws change. Supervisors can help direct practitioners to appropriate sources of support and training, including training on issues of client-centered representation, application of race equity principles, and institutionalization of race equity and cultural humility training and practices.
Supervision should include reviewing case intakes to ensure eligibility, ensuring proper documentation of activities is in the case files, setting standard time periods for completing case activities (subject to exceptions), ensuring regular contact with the client, and the timely closing of completed matters.
The degree to which the organization 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 organization and with the client. Generally, an organization 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 organization to assume such responsibility are discussed in the commentary to Standard 3.7 on Integrating the Resources of the Legal Profession and Involvement of Members of the Bar.