RULE 5.1: RESPONSIBILITIES OF
A PARTNER OR
PARTNERS, MANAGERS, AND
SUPERVISORY
LAWYER
LAWYERS
(a) A partner in a law firm , 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 all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall 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.
Commentary
[1]
Paragraphs
Paragraph (a)
and (b) refer
applies to lawyers who have
supervisory
managerial authority over the professional work of a firm
or legal department of a government agency.
See Rule 1.0(c). This includes members of a partnership
and
, the shareholders in a law firm organized as a professional corporation
, and members of other associations authorized to practice law; lawyers having
supervisory
comparable managerial authority in
the
a legal services organization or a law department of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities in a firm.
Paragraph (b) applies to lawyers who have supervisory authority over the work of other lawyers in a firm.
[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.
[2]
[3]
The
Other measures
that may be required to fulfill the responsibility prescribed in
paragraphs
paragraph (a)
and (b) can depend on the firm's structure and the nature of its practice. In a small firm
of experienced lawyers, informal supervision and
occasional admonition
periodic review of compliance with the required systems ordinarily
might be sufficient
will suffice. In a large firm, or in practice situations in which
intensely difficult ethical problems frequently arise, more elaborate
procedures
measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and
a lawyer having authority over the work of another
the partners may not assume that
the subordinate lawyer
all lawyers associated with the firm will inevitably conform to the Rules.
[3]
[4] Paragraph (c)
(1) expresses a general principle of
personal responsibility for acts of another. See also Rule 8.4(a).
[4]
[5] Paragraph (c)(2) defines the duty of a
partner or other lawyer
having comparable managerial authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Partners
of a private firm
and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner
or manager in charge of a particular matter ordinarily
also has
direct authority over
supervisory responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial action by a partner
or managing lawyer would depend on the immediacy of
the partner's
that lawyer's involvement and the seriousness of the misconduct.
The
A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
[5]
[6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation.
[6]
[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these Rules.
[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).
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