Responsibility for Another's Violation

Rule 5.1(b) asks whether a supervisor made reasonable efforts. Rule 5.1(c) asks a harder question: does the supervisor answer for the subordinate's violation itself? The rule says a lawyer is responsible for another lawyer's violation of the Rules of Professional Conduct if either of two conditions holds.¹ Under clause (1), the lawyer orders the conduct or, with knowledge of the specific conduct, ratifies it.² Under clause (2), the lawyer is a partner, has comparable managerial authority in the firm, or has direct supervisory authority over the other lawyer, knows of the conduct at a time when its consequences can be avoided or mitigated, and fails to take reasonable remedial action.³

Responsibility for someone else's violation sounds like the vicarious liability this chapter has disclaimed, and the South Carolina Supreme Court took up that worry in In re Anonymous Member of S.C. Bar. The liability is not vicarious, the court explained, because the obligation does not arise merely from the relationship between the attorneys. The supervisor's violation rests on participation in the underlying misconduct or on a failure to mitigate it.⁴

The structure of the two clauses bears that out. Ordering places the supervisor at the origin of the violation. Ratification requires knowledge of the specific conduct and an adoption of it. The remaining route requires knowledge plus a failure to act while action could still help. Each route asks something of the supervisor beyond the working relationship, so a supervisor who did none of these things falls outside paragraph (c), however close the supervision. The next two subsections take the routes that involve active participation, ordering and then ratifying. The route that rests on inaction, with its separate elements of status, knowledge, and timing, follows in its own section.

Ordering the Conduct

To order conduct is to direct it before it happens. Rule 5.1(c)(1) makes a lawyer responsible for another lawyer's violation when the lawyer orders the conduct involved.⁵ The supervisor makes the decision, and the subordinate carries it out. The text attaches its knowledge phrase to ratification alone, but an order needs no separate mention of knowledge, because a supervisor cannot direct a particular act without knowing which act it is.

The rule reaches the supervisor here because an order uses the subordinate as the means of carrying out the supervisor's own decision. That is participation in the underlying misconduct, which the South Carolina Supreme Court identified as the basis of liability under paragraph (c) in place of the bare relationship between the lawyers.⁶ Ordering is the plainest form of participation.

Whether an instruction was an order depends on what the supervisor directed. Compare two supervisors whose associates commit the same violation.

The supervisor's instruction was ordinary and lawful, and the violation belongs to the associate. Other parts of the rule still examine the supervisor's own conduct. Rule 5.1(b) asks whether the supervisor made reasonable efforts to ensure the associate conformed to the Rules, and Rule 5.1(c)(2) asks whether a supervisor who learned of the conduct while its consequences could still be mitigated took reasonable remedial action.⁷ Those are separate questions with elements of their own, and they do not turn the filing instruction into an order.

The associate impersonates the client in both scenes, so the violation is identical. What changed the answer is who decided to commit it: the associate in the first scene, the supervisor in the second. A direction to meet a deadline or win a motion points toward a lawful result, and a subordinate who reaches that result by a prohibited route has chosen the route. An order directs the conduct that constitutes the violation. Whether a given instruction crossed that line turns on what the supervisor actually said and did. The analysis looks for the supervisor's direction in the facts and does not infer an order merely because the supervisor wanted a result.

Clause (c)(1) adds the supervisor to the picture without removing the subordinate. A supervisor who fails to satisfy Rule 5.1 can be sanctioned completely separately from any sanction issued for the supervised lawyer's own actions.⁸ The order explains how the impersonation came about, but the associate still signed and swore. Whether a subordinate has any defense of acting under a supervisor's direction is a separate question that this unit does not take up.

Ratifying the Conduct

Ratification is the mirror image of ordering. Rule 5.1(c)(1) makes a lawyer responsible for another lawyer's violation when the lawyer, with knowledge of the specific conduct, ratifies it.¹⁰ To ratify is to approve conduct after it has been done and so adopt it as one's own. Ordering comes before the violation and puts the supervisor at its origin. Ratification comes afterward, and it reaches a supervisor who gave no instruction, learned what the subordinate did, and responded by endorsing it. The supervisor joins a violation that is already complete.

The knowledge requirement is specific. The supervisor must know the conduct involved, and knowing only that a good result was achieved is not enough. A means that was never disclosed cannot be approved. A rule that punished vague endorsement of results would reach every supervisor who ever thanked a subordinate for meeting a deadline.

Ratification counts as responsibility for the violation itself because of how the South Carolina Supreme Court described paragraph (c). The court said the liability is not vicarious, because the obligation does not arise merely from the relationship between the attorneys, and it said the supervisor's violation rests on participation in the underlying misconduct or on a failure to mitigate it.¹¹ Ratification is participation after the fact. A supervisor who approves a known violation has adopted it. Whether a supervisor who praises a subordinate's work has done that depends on what the supervisor knew when speaking.

The associate remains answerable for the impersonation. Ratification and the failure-to-remedy clause both depend on knowledge, so this supervisor, who did not order the conduct either, stays outside paragraph (c). Rule 5.1(b) still asks whether the supervisor made reasonable efforts to ensure the associate conformed to the Rules, and that question does not turn on what the supervisor knew.¹²

The filing, the impersonation, and the words of praise are the same in both firms. What changed the answer is what the supervisor knew when the approval was given. The sanction also runs separately from the associate's own, since a supervisor who violates Rule 5.1 can be disciplined completely apart from any sanction for the supervised lawyer's underlying conduct.¹³

Ratification differs from the form of responsibility taught next because it is affirmative approval. A supervisor who learns of the impersonation and says nothing has approved nothing, and whether that supervisor must answer for it turns on clause (c)(2), which adds its own requirements of status, timing, and remedial action.¹⁴ Clause (c)(1) has no timing qualifier of the kind found in (c)(2). Approval given after the complaint is filed and the harm is done still counts, because the clause demands knowledge of the specific conduct.