Duty Without Vicarious Liability

Supervisory Lawyer Responsibility

Duty Without Vicarious Liability

Students often assume that a partner answers in discipline for whatever a lawyer down the hall does wrong. Rule 5.1 of the Model Rules of Professional Conduct says otherwise. It gives partners, managers, and supervising lawyers three duties of their own, and a supervisor is sanctioned for breaching one of those duties, not for sharing a firm with the wrongdoer.

The first duty runs to the firm as a whole. A partner, or a lawyer with comparable managerial authority, must make reasonable efforts to ensure that the firm has measures giving reasonable assurance that all its lawyers conform to the Rules.¹ The second runs to a single relationship. A lawyer with direct supervisory authority over another lawyer must make reasonable efforts to ensure that the other lawyer conforms.² The third attaches to a particular violation. A lawyer answers for another lawyer's violation by ordering the conduct or, with knowledge of the specific conduct, ratifying it.³ A lawyer also answers by being a partner or holding comparable managerial authority in the other lawyer's firm, or by having direct supervisory authority over that lawyer, while knowing of the conduct at a time when its consequences can be avoided or mitigated, and then failing to take reasonable remedial action.⁴

Vicarious liability would work differently. It would hold a supervisor responsible for a subordinate's conduct merely because of the relationship between them. In re Anonymous Member of S.C. Bar, the court explained that liability under Rule 5.1(c) is not vicarious, because the obligation does not arise merely from the relationship between the attorneys. The supervising attorney's violation rests instead on participation in the underlying misconduct or on failure to mitigate it. Once a partner is on notice of another lawyer's misconduct, the rule imposes a clear duty to take remedial measures that avoid or mitigate its consequences.⁵

The supervisor's liability is therefore separate from the subordinate's. A lawyer who fails the supervisory requirements of Rule 5.1, by action or omission, violates the Rules and can be sanctioned completely apart from any sanction for the supervised lawyer's underlying conduct.⁶

That separation cuts both ways. On one side, a supervisor cannot escape by proving ignorance of the misconduct. The court looks to whether the attorney took reasonable measures in supervising the subordinate, and a complete lack of knowledge can support a finding of poor supervision when reasonable supervision would have discovered the violation.⁷ On the other side, one lawyer's violation does not expose every lawyer in the firm to sanction. Partners can adopt many varied procedures and policies, fitted to the size of the firm, to meet their responsibilities under Rule 5.1 and so protect themselves from exposure.⁸

The rule therefore works in three layers, and the sections that follow take them in order. Rule 5.1(a) governs the firm's overall structure. Rule 5.1(b) governs the individual supervisory relationship. Rule 5.1(c) governs the supervisor's participation in, or failure to correct, a particular violation. Only subsection (c) speaks of responsibility for another lawyer's violation, and even there the liability rests on the supervisor's own ordering, ratifying, or failure to remedy the conduct.⁹

Rule 5.3 follows the same pattern for nonlawyer staff. In language directly parallel to Rule 5.1, it obliges managerial and supervisory lawyers to make reasonable efforts to ensure that nonlawyer assistants in the firm behave in a manner compatible with the lawyer's professional obligations.¹⁰ This chapter confines itself to a supervisor's duties toward other lawyers.