Concept
Firm-Wide Measures
Partner, manager, and supervisory lawyer responsibility (Rule 5.1)
Firm-Wide Measures
Rule 5.1(a) speaks to the firm as an organization. It requires a partner, and any lawyer who individually or together with other lawyers possesses comparable managerial authority, to 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.1
“Comparable managerial authority” reaches past the title of partner to any lawyer who holds the kind of power over the firm’s operations that partners hold. Because the text covers authority possessed “together with other lawyers,” it also reaches managers who act jointly, such as the members of a management committee. A firm therefore cannot avoid the duty by pointing out that no single lawyer was in charge.2
The duty is aimed at the firm’s design. Rule 5.1(a) names no particular subordinate, so a firm can satisfy it or breach it before any lawyer has done anything wrong. A firm with no reliable way to catch conflicts of interest has a gap in its structure even if every lawyer has so far behaved well. A firm with sound safeguards has done what the rule asks even if one lawyer later evades them. Rule 5.1(b), the next layer, is different: it concerns a supervisor and the particular lawyer who answers to that supervisor.
The responsibility falls on senior management because senior management has the most influence over the firm’s atmosphere. The comment recognizes that “the ethical atmosphere of a firm can influence the conduct of all its members,” and by placing responsibility on the firm’s leaders the rule keeps those with the most influence from turning a blind eye.3 The rule does not make partners guarantors. They need not ensure that no lawyer in the firm will ever violate the Rules, but ignoring their supervisory responsibilities can lead to sanctions for those running the firm.4 The two subsections that follow ask what systems the rule has in mind and how the content of “reasonable” shifts with the firm.
Required Systems
The text of Rule 5.1(a) never says what the measures are, so their content comes from decisions and commentary.5 In Board of Overseers v. Warren, the Maine court applied that state’s counterpart to Rule 5.1(a) and pointed to the Restatement’s list of policies and procedures a firm should have: those designed to avoid conflicts of interest, ensure deadlines are met, account for client funds, and provide supervision and support to inexperienced lawyers.6
Those examples do two different jobs. Conflict checking, deadline control, and client-funds accounting are controls on the work itself. They cover the recurring places where a lapse is predictable and costly to a client, and a firm-wide routine there does not depend on one busy lawyer remembering, on a given day, to do the right thing. A deadline docket that everyone uses flags a looming date whoever handles the matter. Supervision and support for inexperienced lawyers belongs to a second group, which is structure for the lawyers themselves. It is aimed at lapses of judgment that no checklist catches, because the lawyer must first see that an ethical question exists.
Inexperienced lawyers are where that second group matters most. The Warren court observed that a firm’s obligations vary with whether a lawyer is experienced or inexperienced.7 A firm that hands new lawyers full dockets and says only “ask if you need help” leaves the least experienced person in the office to notice the problem alone. The comment’s point about the firm’s ethical atmosphere is that the lawyers who control that atmosphere cannot look away from such a gap.8
A firm also benefits when its lawyers can raise problems early. In RFF Family Partnership LP v. Burns & Levinson LLP, the court quoted a commentator’s view that broad protection for communications with firm in-house counsel, including communications about a current client of the firm, would encourage firm members to seek early advice about their duties to clients and to correct mistakes or lapses, if possible, to alleviate harm.9 That discussion concerned the protection of those communications and did not construe Rule 5.1(a). It still shows why a way to take a question to someone who can act on it serves the aim of the rule.
Warren shows what a failure of systems looks like. A partner, Duncan, engaged in significant malfeasance and broke down. The firm’s executive committee dealt with him compassionately, and nothing suggested bad faith. Even so, the firm let him keep practicing for more than three months without putting any additional measures into effect, and none of the attorneys recognized that the Maine Code required them to contemplate reporting his conduct. Because the firm’s practices did not require its leadership even to consider whether it had an obligation to report, the court held as a matter of law that the firm lacked measures giving reasonable assurance of compliance.10
Two lessons follow. First, compliance is judged by an objective standard of reasonableness, so sincerity and kindness do not supply a missing mechanism.11 Second, the response in Warren was one the full executive committee accepted, and the court tested it as the firm’s response. Managerial authority exercised together is judged together.12
An exam stem will usually describe a subordinate’s violation and a partner who knew nothing about it. The tempting question is whether the partner caused or knew of the violation, but that question belongs to the later layers of the rule. Under Rule 5.1(a) the question is whether those with managerial authority built a mechanism, covering the work and the people doing it, that would catch problems early. A violation does not answer that question, and neither does the lack of one.
Scaling to the Firm
Rule 5.1(a) requires reasonable efforts to secure measures that give reasonable assurance of compliance. The word reasonable appears twice because the rule sets a standard and not a list of required procedures.14 A standard of that kind has no fixed content: what is reasonable for one firm may fall short at another, and the same firm may owe more at one moment than at an earlier one. The rule also asks only for assurance, which is a degree of confidence, and its text does not promise that every lawyer will always conform. A standard that moves with circumstances and a duty of effort rather than result organize the rest of this subsection.
The comment supplies the scaling principle directly, and the South Carolina Supreme Court relied on it in In re Anonymous Member of S.C. Bar. The measures required depend on the firm’s structure and the nature of its practice. In a small firm, informal supervision and occasional admonition ordinarily might be sufficient, while in a large firm, or in practice situations in which intensely difficult ethical problems frequently arise, more elaborate procedures may be necessary.15 From that language the court drew the corollary that a senior attorney in a large firm has an even greater responsibility than a lawyer in a smaller practice to enact formal office procedures.16
The reason follows from what informal supervision depends on. A few experienced lawyers who work side by side see one another’s files and hear one another’s problems, so conversation does the job that a written procedure does elsewhere. As a firm adds lawyers, offices, and inexperienced associates, no one can watch everything, and the firm has to put in writing what conversation used to accomplish: who reviews which filings, who tracks deadlines, and where a junior lawyer takes a question. Frequent hard ethical problems push the same way, because a practice full of close calls cannot rest on each lawyer improvising the right answer under pressure. The rule ties the content of “reasonable” to the firm in question because one fixed set of procedures would either burden the small firm with machinery it does not need or leave the large firm underprotected.
Neither firm in that pair is promised a violation-free future, and the rule does not ask for one. The Warren court observed that appropriate supervision varies with the size and nature of the firm but cannot be expected to guarantee against all violations.17 The comment’s treatment of senior management says the same thing from the other side: partners are not required to guarantee that other lawyers will not violate the Rules, yet ignoring their supervisory responsibilities can lead to sanctions.18 A rule that punished every violation would punish managers for events beyond the reach of any procedure, and it would give them no way to know when they had done enough. A rule that asks for reasonable efforts gives them a target they can meet and keeps their exposure tied to their own conduct. A violation by a firm lawyer therefore opens an inquiry into the firm’s measures without settling it.
Warren is the clearest illustration of circumstances raising the bar. The court applied Maine’s counterpart to Rule 5.1(a) and held that the obligations vary not only with whether an attorney is experienced or inexperienced but also with whether the attorney is understood to be suffering from a serious emotional impairment.19 The firm there let Duncan keep practicing for more than three months without any additional measures, a response the full executive committee accepted, and the court held that this response did not satisfy the rule as a matter of law.20
The mechanism is notice. General measures are designed for the typical lawyer, so ordinary oversight rests on an assumption that nobody in the firm is in particular difficulty. Once the people in charge understand that one lawyer is a special risk, that assumption no longer holds for that lawyer, and reasonable assurance of compliance calls for added measures. The trigger here is knowledge of a risk, which differs from the knowledge of a specific violation on which the duty to remedy turns later in this chapter. It operates on the firm’s forward-looking duty to design adequate safeguards.
Candor inside the firm also affects whether the measures can work. In Lawyer Disciplinary Board v. Artimez, a lawyer lied to his partner about a relationship with the wife of the firm’s client, and the tribunal found that the lie frustrated the partner’s efforts to comply with Rule 5.1(a).21 The decision disciplined the lawyer who lied. It does not suggest that a partner is excused from maintaining reasonable measures, only that safeguards depend on the information lawyers give to the people who oversee them.
The last feature of the standard is that it is objective. The Warren court recognized that the executive committee dealt with its colleague with compassion and that nothing suggested bad faith, and it still held that the firm lacked reasonable measures.22 The inquiry compares what the firm did with what its size, practice, and knowledge required. A sincere and sympathetic response that did not match the risk is therefore still an inadequate one, because good intentions are not a measure the firm has put in place.