Most attorneys are aware that they have duties to act ethically in the practice of law. Sometimes, however, it is difficult to determine where that obligation extends beyond the attorney's own conduct.
For partners, some complications can arise when supervising other attorneys. For associates, complications can arise when learning of errors committed by more senior attorneys.
Here are some tips for how both partners and associates in firms or partnerships can comply with their ethical duties to supervise others and disclose potentially risky behavior by others.
Duty to supervise—partners take note
Many clients are pressuring attorneys to keep the costs of their legal services down. To meet these pressures, attorneys may try to adhere to a strict budget on the number of hours permitted or source work down to more junior attorneys or staff.
Engaging more junior attorneys and staff members can be a good solution, not only because it is an effective way to manage expense, but also as a training tool. Attorneys must be mindful, however, of their obligations to supervise those attorneys and staff who assist them. Pursuant to Rule 5.1(b) of the Georgia Rules of Professional Conduct, "a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Georgia Rules of Professional Conduct."
Further, pursuant to Rule 5.1(c), lawyers are "responsible" for another lawyer's violation of the rules where they order or ratify the conduct involved, or where the attorney has "direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigates but fails to take reasonable remedial action."
In practice, this manifests itself as an obligation on partners to manage and supervise associates. Therefore, it typically is too great a risk to permit associates to proceed on matters without any supervision at all. This does not mean that associates cannot take active or quasi-managerial roles in cases. It does mean, however, that the buck stops with the partners.
"A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred." Ga. R. Prof'l Conduct 5.1, cmt. . A supervisor cannot intervene when he or she is not well informed or aware of what misconduct has occurred. Thus, a partner or supervising attorney must take care to have some involvement and awareness of a subordinate attorney's work on a matter.
In some instances, associates may have the ability to bind the law firm for malpractice purposes. For example, if an associate sends an email with a legal opinion to a client and the opinion is incorrect, the firm could be liable.
The answer is not to micromanage or to prohibit associates from taking active roles, but instead for supervising attorneys to be copied on relevant correspondence, at a minimum, and to supervise and weigh in on strategy decisions relating to the representation. It also means that supervising attorneys should convey their expectations to associates, with regard to both practical expectations and ethical expectations.
It is also a good idea for more senior attorneys to actively participate, even with respect to tasks delegated to more junior lawyers, i.e., by being copied on all correspondence, so that strategy and tactics can be adjusted if necessary before it is too late.
Duty to disclose—associates take note
The duty of partners to supervise does not relieve more junior attorneys of their own obligations. For example, in situations in which a junior attorney becomes concerned about possible errors or omissions by a more senior attorney, the junior attorney may have disclosure obligations created by the Rules of Professional Conduct or their malpractice insurance policy.
All attorneys within a law firm have an obligation to clients to ensure that the clients are being well-represented. If an attorney believes that another attorney may have failed to abide by the Rules of Professional Conduct, the first attorney may have an obligation to disclose such facts to the client or the bar.
Further, attorneys have an obligation in applying for or renewing insurance coverage to disclose all claims or potential claims; if this disclosure is undertaken by the law firm on behalf of all of the firm's attorneys, it can only meet this obligation when it is aware of all claims or potential claims its attorneys are facing.
This is all to say that attorneys in a firm have a general duty to disclose to the firm those risks, mistakes and circumstances that could give rise to a malpractice claim. This is not only for the benefit of the law firm but also for the attorney, and extends to associates as well as partners.
This duty of disclosure generally extends to law firm attorneys who are aware of any claim or facts that might give rise to a claim, even if the error or potential error was made by another attorney. This complicated issue most often arises in the context of an associate who is aware of a partner's malfeasance, but unaware as to whether the partner has disclosed the issue to the firm or the insurance carrier. In those circumstances, an associate who fails to disclose to the insurance carrier that he or she is aware of facts or circumstances that might give rise to a claim, could find himself or herself without insurance coverage if they are ever sued in connection with the error, even when the error is one committed by their supervising partner and not the associate.
Some associates mistakenly believe that it is not their obligation to disclose, or they feel uncomfortable with the idea of "tattling" on the partner. But those associates should know that they are increasing the risk not only to the law firm but also to themselves.
Associates are not always immune from liability for legal malpractice merely because they were following the orders of a supervising attorney. Associates generally have a duty to "act in a manner that benefits the firm and does not benefit himself or interests adverse to the firm." Restatement (Second) of Agency § 387 (1958). Further, Rule 5.2 of the Georgia Rules of Professional Conduct states that a lawyer is bound by those rules "notwithstanding that the lawyer acted at the direction of another person," subject to certain limitations.
Just as important as disclosing these issues is identifying to whom disclosure should be made. In some areas, there is a risk that disclosures to anyone other than the firm's counsel could risk a waiver of privilege. Therefore, it is important in disclosing material facts to confirm the proper party at the law firm to whom disclosure should be made.
Law firms have the ability to create a culture that supports disclosure and can encourage their attorneys to disclose material developments, which helps unify a firm's purpose and defenses. Attorneys attempting to handle potential errors on their own can pose significant risk to their employment and coverage, as well as the firm's ability to help them.
It is also important for a law firm to identify to its attorneys the firm's in-house general counsel or designated attorney so that attorneys know whom to notify and so that the privilege may be maintained.