Know Your Responsibilities under Rule 5.2
Lawyers generally may not shield themselves from later bar sanctions on the basis that they acted at the direction of a supervising attorney. If the supervising attorney orders a subordinate attorney to take action that would violate the professional rules, the subordinate attorney must refuse to do so. In addition, if a subordinate attorney knows or has reason to know that a supervising attorney is violating the rules of professional conduct, the subordinate attorney must report the supervisor.
At first, this might seem like a harsh rule that presents an unrealistic challenge to a new attorney. However, by studying the subordinate attorney rule, understanding its implications and interpretations through real-world cases, and formulating a prophylactic plan to handle difficult situations, you (the subordinate lawyer) will easily resolve most issues. Equally important, you will know when a difficult case requires further consideration and counsel. With an appropriate plan, you will minimize the effect of raising these difficult and uncomfortable issues with supervisors and know how to protect your three most valuable assets: your clients, reputation, and law license.
Study Rule 5.2, Its Comments, and Interpretation
As always, you should start with a thorough reading of the corresponding rule in your jurisdiction. Rule 5.2 (adopted in most jurisdictions) states:
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
You remain liable for your wrongful conduct under the rules. You are expected and required to act as an independent authority in determining whether your actions adhere to the professional rules, regardless of who orders them.
Rule Interpretation
Rule 5.2 requires that you independently identify any issues under the rules and ensure that all of your actions fall within them, even when working at the direction of another attorney. However, part 5.2(b) does provide a limited “safe harbor” when you encounter an unclear issue under the rules and rely on your supervisor’s reasonable interpretation of the question.
Two Distinct Scenarios to Be Aware Of
The rule, as written, gives rise to at least two distinct scenarios to be aware of.
1. If the Subordinate Lawyer Faces a Factual Question That Implicates the Rules
First, the subordinate lawyer may face a factual question that implicates the rules. For example, the subordinate lawyer may not know whether the supervising attorney properly researched an issue before ordering the subordinate lawyer to submit a motion or brief or whether the supervising attorney communicated a settlement agreement to the client before ordering the subordinate lawyer to reject it.
In both situations, the subordinate lawyer only needs to resolve a question of fact to resolve the issue. If the supervising attorney properly performed the legal research or had prior permission from the client to reject settlement agreements under a certain value, then the supervising attorney satisfied their responsibilities to the client. However, the subordinate lawyer may not assume the supervising attorney has done so and must ask these important questions, however uncomfortable that may initially seem.
2. If the Subordinate Attorney Rule Presents a Legal Question
Second, the subordinate attorney rule may present a legal question. For example, the subordinate lawyer may not know whether preparing and filing deeds to real property constitutes the practice of law in his or her jurisdiction. If the supervising attorney orders the subordinate attorney to refer the client to a non-attorney who will file the deed with the state, the subordinate lawyer must determine whether this constitutes the unauthorized practice of law. The subordinate attorney must first research the legal issue to determine whether the law provides a clear answer. If the attorney practices in Ohio, they will quickly find ethical opinions that hold that preparing and filing deeds does, in fact, constitute the practice of law.
If the legal question remains unclear, and there are reasonable and colorable arguments on both sides, then the subordinate attorney may rely on the reasonable interpretation of the law that the supervising attorney provides. Note that the safe harbor only applies if your supervisor acts reasonably under the circumstances to resolve a legitimate question under the professional rules. As the Comments to the Rule note:
[I]f the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two client’s conflict under Rule 1.7 [A.N.: prohibiting a lawyer from representing a client if the representation involves a concurrent conflict of interest], the supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.
For new lawyers and law students, the word “reasonable” likely raises a flag in your mind. How will you know if your supervising attorney acted reasonably and later prove you believed they did so?
Create Your Rule 5.2 Communication and Resolution Plan
Take the time to create a thought-out plan to resolve ethical issues if they arise in this context to avoid the old adage: failing to plan is planning to fail.
Refresh Your Recollection of Rules
You must first review the rules of professional conduct. With the rules fresh in your mind, you will more easily spot potential issues, which you may then research and, in most cases, resolve easily on your own. If you have even a slight suspicion that your conduct might raise an issue, you should pause, investigate, and research that possibility.
Establish Solid Communication and Relationships with Supervisors
Practicing law is about making connections and fostering relationships. If you personally know and connect with your supervising attorneys, you’re more likely to feel comfortable later in raising issues. When you have a solid relationship with your supervisors, they likely will not take offense if you bring an issue to their attention, even if it implies that they may have made a mistake.
Research Issues and Resolve Them Methodically
Before raising a potential professional conduct issue with anyone, ensure you have all the facts available and properly researched the issue to the best of your ability. Look for ethics opinions in relevant jurisdictions to guide your thinking. Research past cases where attorneys were disciplined under the rule. Take the research seriously and conduct it thoroughly.
Take Advantage of Resources to Help You Navigate Your Path Forward
If you believe that your supervising attorney has ordered actions that violate the rules of professional conduct, you should take measured actions to protect yourself and resolve the issue. If you have established a strong personal relationship with your supervisors, you may feel comfortable raising ethical issues with them. But if you don’t, or if you recognize a conflict of interest in which it would be inappropriate to raise the issue with your supervising attorney, take advantage of the resources available to protect yourself and your career.
Most local bar associations provide ethics hotlines that you may call to seek assistance from an attorney specializing in resolving prospective ethical issues. Many states also issue advisory opinions on attorney conduct under the rules. These opinions carry great weight, and obtaining and following an opinion provides a very strong argument that you acted properly.
Document During Each Step
As discussed above, you may later be called upon to prove that you acted properly while obeying your supervising attorney. You may also be asked to prove that you acted to the best of your ability to follow all the professional rules. Therefore, you should document each communication that you have throughout this process.
Understanding Ethical Issues, Challenges, and Moral Fortitude
The harsh reality is that life is not always fair and that some lawyers will face backlash for reasonably raising ethical issues, even when done so in absolute good faith. For example, in Bohatch v. Butler & Binion, 977 S.W. 2d 543 (Sup. Ct. Tx. 1998), a partner suspected another more senior partner of overbilling a client. The reporting partner raised the issue, but the firm ultimately found that the reported partner did not overbill the client. The firm expelled the reporting partner, and she sued the firm for wrongful expulsion from the partnership.
The Texas Supreme Court held that, even if the reporting partner reported the incident in good faith, the partnership retained the power to expel the reporting partner. Because partnerships only function properly when all partners trust each other, and the other partners no longer trusted the reporting partner, they could expel her on this basis. Thus, as the court aptly noted, “the fact that the ethical duty to report may create an irreparable schism between partners neither excuses the failure to report nor . . .” provides the reporting attorney with any recourse in tort law. The subordinate lawyer rule presents the same considerations when you decide to push back on your supervisors’ edict. Even if you are correct, that does not mean you will necessarily fully protect your job, but you will protect your reputation and law license.
Protect Your Clients and Yourself
There may come a day when a supervising attorney orders you to take action that you know will violate the rules of professional conduct. To protect yourself, you must refuse to do so and be willing to suffer consequences from it. Research the issue, speak with available resources, and speak with your supervising attorney before taking remedial action. Document your actions. And in the end, remember that your primary duties are to your clients and the public, not to your law firm or supervising attorney.
