Failure to Remedy

Failure to Remedy

Rule 5.1(c)(2) is the second route to responsibility for another lawyer's violation, and it asks the supervisor for something the first route never did. A lawyer is responsible if the lawyer is a partner or has comparable managerial authority in the law firm where the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.¹ The first route required the supervisor to order the conduct or, with knowledge of the specific conduct, to ratify it.² A supervisor who did neither can still answer under (c)(2), because the clause puts the fault in what the supervisor does after learning of the violation.

The South Carolina Supreme Court described the consequence in In re Anonymous Member of S.C. Bar. A law firm partner who discovers that another lawyer in the firm has engaged in misconduct must take action or face personal liability, and once the partner is on notice the rule imposes a clear duty to take remedial measures to avoid or mitigate the consequences.³ The court added that this liability is not vicarious. The obligation does not arise merely from the relationship between the lawyers, and the supervisor's violation rests on participation in the underlying misconduct or on failure to mitigate it.⁴

The clause exists because the lawyer who learns of misconduct is often the only person who can stop it or limit its harm. That lawyer can call the client, correct a filing, retrieve a document, or take the problem to the firm's counsel before the damage hardens. If silence after learning carried no consequence, rank would become a shield: the less the supervisor chose to do, the less there would be to blame. The rule therefore turns knowledge into a duty to act, and its limits follow from the same logic. Knowledge triggers the duty, and the duty applies only while consequences can still be avoided or mitigated, because no one can fairly be faulted for failing to change an outcome already fixed.

Paragraph (c)(2) also works differently from Rule 5.1(b). A supervisor can violate paragraph (b) without knowing anything about the subordinate's misconduct, because (b) measures the efforts the supervisor made beforehand.⁵ Paragraph (c)(2) has nothing to measure until knowledge exists. Its four elements are status, knowledge, timing, and a failure to act reasonably, and the subsections below take them in that order, pairing status with knowledge.

Status and Knowledge

The status element offers three ways in, and they connect the lawyer to the violation differently. A partner, or a lawyer with comparable managerial authority, qualifies by position in the firm where the offending lawyer practices, with no working relationship to that lawyer required. A lawyer with direct supervisory authority qualifies by relationship to the particular lawyer, whatever the supervisor's rank. Direct supervision therefore does less work here than under Rule 5.1(b), where it gated the whole duty;⁶ under (c)(2) it is only one door.⁷ A partner who never assigned or reviewed an associate's work is still inside the clause as to that associate's conduct.

The clause looks to authority because a remedy takes power. Avoiding or mitigating a violation's consequences usually means calling the client, withdrawing or correcting a filing, taking the matter away from the lawyer, or bringing the problem to the firm's counsel. Partners and managers hold that power across the firm, and a direct supervisor holds it over the supervised lawyer's work. A lawyer with no such power cannot carry out the duty, so the clause does not impose it. Status makes a lawyer a candidate for the duty, and knowledge is what activates it.

Students tend to err in two directions on this element. Some carry direct supervision over from paragraph (b) and conclude that a partner outside the associate's chain of command owes nothing. Others treat knowledge of a violation as enough and charge a lawyer who holds no covered status. The two scenes share the same call and the same knowledge, and status alone separates them.

Knowledge is where paragraph (c)(2) departs furthest from paragraph (b). The South Carolina court drew the line when it observed that attorneys can be sanctioned under Rule 5.1(b) even if they had no knowledge of the supervised attorney's inappropriate behavior.⁸ Paragraph (b) judges what the supervisor did beforehand, so a supervisor who never looked at a subordinate's work can be faulted because reasonable supervision would have turned up the problem. Paragraph (c)(2) has no such reach. It applies when the lawyer actually learns of the conduct, and what a more diligent lawyer would have discovered cannot stand in for what this lawyer knew. The rule's words point to the conduct itself, so general suspicion about a colleague does not meet the element.

The knowledge element follows from what a remedy is. A remedy responds to something, and a lawyer who has never heard of a violation cannot call the client, withdraw the filing, or alert the firm's counsel about it. Holding that lawyer responsible for not responding would punish a failure to investigate, which is a different fault from the one this clause addresses. Paragraph (b) already covers that fault for direct supervisors through its reasonable-efforts standard, and paragraph (a) covers it for firm leaders through the duty to build measures. Knowledge ties liability under (c)(2) to a real opportunity to respond and keeps the clause from duplicating the negligence-style inquiry that paragraph (b) supplies.

Warren shows whom a court examines once knowledge is the dividing line. The Maine court applied its own bar rules, counterparts of the Model Rule provisions. Bar Counsel charged the attorneys with violating the counterpart of paragraph (a) because no procedures existed to ensure compliance with the ethics rules, and the counterpart of the remedial clause because they failed to take remedial measures to avoid or mitigate the consequences of a colleague's misconduct.⁹ The court weighed the duties of six partners who sat as the firm's executive committee, the only lawyers within the firm who knew of the colleague's actions.¹⁰ It described the remedial duty this way: partners and supervising attorneys must prevent or rectify the harm caused by a violation if any of them learns of the harm while corrective action is still possible.¹¹ That formulation follows the lawyers who learned of the conduct and held authority over the firm, and lawyers elsewhere in the firm, who did not know, drop out of the analysis. The remedial charge ultimately did not succeed, but for a reason that belongs to the timing element: after the attorneys discovered the misconduct, no consequences from the delay in reporting could have been avoided or mitigated.¹² Status and knowledge were present there, and the next subsection takes up the element that was missing.

Side by side, the layers sort the lawyers. A partner who is not the direct supervisor and who never learns of the conduct falls outside (c)(2) but remains part of the leadership whose firm-wide measures paragraph (a) examines. A direct supervisor who never learns of it also falls outside (c)(2) yet can still violate paragraph (b) if the supervisor made no reasonable efforts. A stem saying a partner should have known, or would have found out through ordinary review, is therefore speaking the language of paragraphs (a) and (b), and a stem saying the partner learned of the conduct is where (c)(2) begins.

Time to Avoid or Mitigate

The timing element filters everything else in the clause. A lawyer is responsible only if the lawyer knows of the conduct at a time when its consequences can be avoided or mitigated and then fails to take reasonable remedial action.¹⁴ Status and knowledge told you which lawyers the clause reaches and what they must have learned. Timing asks when the learning happened and measures that moment against what action could still accomplish. Two verbs carry the test. To avoid a consequence is to prevent it altogether, and to mitigate it is to reduce it once it has begun. The window stays open while any part of the harm remains within the supervisor's power to prevent or lessen.

The rule ties responsibility to that window because a remedy exists to limit harm and has value only while something remains to change. If the consequences have hardened by the time the supervisor learns of the violation, nothing the supervisor could have done would have altered the outcome, and the failure to act cost no one anything that could have been saved. Holding the supervisor responsible in that case would punish silence that did no avoidable harm, and it would blur (c)(2) into the questions paragraphs (a) and (b) already ask about what a firm or supervisor should have known and done beforehand. A supervisor who should have learned of the conduct sooner is analyzed under those paragraphs, because (c)(2) runs from the moment the lawyer actually knows.

Warren shows the element at work, and it comes out in the supervisors' favor. Six partners sitting as a firm's executive committee had learned that a colleague, Duncan, had engaged in serious misconduct, and Bar Counsel charged that they failed to take remedial measures under the Maine counterpart of the clause.¹⁵ The court stated the duty in terms that track the timing element: partners and supervising attorneys must prevent or rectify the harm actually caused by a violation if any of them learns of the harm at a point when there is still an opportunity to take corrective action.¹⁶ The single justice had found, and the record supported, that after the attorneys discovered the misconduct in June 2007, no consequences from the delay in reporting could have been avoided or mitigated, and the court left that finding undisturbed.¹⁷ That finding answered the remedial charge even though the committee had delayed in reporting. A delay counts against a supervisor only if it forfeited something that action could still have saved.

The conduct and the inaction look alike in this hypothetical and in Warren, and the difference lies in what remained possible when the lawyers learned. Here a withdrawal on Monday would have prevented the harm, while in Warren nothing the committee could have done sooner would have changed the result. The word mitigated also keeps the window from closing too early. A supervisor who learns of a violation after some harm has occurred is not excused on that ground alone, because the question is whether anything can still be reduced, such as correcting a filing or informing the client before the damage spreads. An argument that the violation was already complete when the supervisor learned of it is therefore unfinished until it also shows that no step could have lessened the consequences.

A finding that the timing element fails does not clear a supervisor on every layer of Rule 5.1. In the same opinion that left the no-consequences finding undisturbed, the Maine court concluded that the six partners, as the firm's executive committee and the only lawyers who knew of Duncan's actions, had violated the counterpart of Rule 5.1(a).¹⁸ The court vacated the judgment finding no violation and remanded for entry of a judgment consistent with its opinion and an appropriate sanction.¹⁹ The results fit together because the questions differ. Timing looks forward from the moment of knowledge and asks whether action could still have changed anything. The firm-wide measures duty looks backward at whether the firm had safeguards in place. A stem that gives a supervisor knowledge too late to matter should end the (c)(2) analysis on this element, and the analysis should then move on to paragraphs (a) and (b).

Reasonable Remedial Action

The last element decides whether a supervisor who knew in time is actually responsible. Status, knowledge, and timing identify the lawyer, what the lawyer learned, and when the learning occurred. They leave one question: what did the lawyer do with the opportunity? The clause answers with an action standard.²¹ It measures the supervisor's conduct after notice, so a supervisor satisfies it by acting reasonably to avoid or mitigate the consequences and violates it by doing nothing, or by doing something that has no bearing on them.

The rule turns notice into a duty to act because the supervisor is usually the one positioned to help. A partner or supervisor who learns of a violation typically holds the practical power to stop or soften its effects, while the lawyer who committed it may be unwilling, unable, or unaware of the harm to come. If a supervisor could watch the consequences unfold and answer for nothing, supervisory rank would protect the very inaction the rule targets. The South Carolina court read paragraph (c) accordingly: once a partner is on notice of another lawyer's misconduct, the rule imposes a clear duty to take remedial measures to avoid or mitigate its consequences.²² The opinion in Bohatch v. Butler & Binion states the same duty under Texas's counterpart, and it describes that rule together with the reporting rule as essential to the self-regulation of the profession.²³ The word reasonable supplies the other half of the design. Mitigate already tells you the duty does not demand a complete cure, so a supervisor who takes sensible corrective steps is protected even when some harm remains, and the inquiry stays on the supervisor's own conduct, the idea that has organized this chapter.

The Maine court stated the duty in Warren in similar terms. Partners and supervising attorneys must prevent or rectify the harm actually caused by a violation if any of them learns of the harm at a point when there is still an opportunity to take corrective action.²⁴ Each part of that sentence does work. The two verbs reach harm that has not yet happened and harm that already has, so the duty does not end when the violation is complete. The phrase actually caused points the duty at real consequences, and the phrase about an opportunity for corrective action restates the timing element. Read together, they mean that a response counts as remedial only if it is aimed at the harm the violation produced or threatens to produce.

Status, knowledge, and the open window are the same in the two scenes, and only the use each partner made of the window differs. Neither partner had to undo the associate's misstatement, which had already happened. The clause asks whether they acted on the consequences still within reach. Activity that does not touch those consequences does not count, however sensible it is as general practice management. Neither the rule nor the Maine decision supplies a list of approved steps, and a list would not help, because the reasonable step depends on the consequence at stake. Calling the client fits a deadline misstatement, and a different violation calls for a different response. A stem that shows a supervisor responding in some way therefore raises two questions: whether the response was aimed at the consequences, and whether it came while they could still be avoided or mitigated.

The failure-to-remedy clause is not the only route under paragraph (c), and the routes are independent. Ordering the conduct, or ratifying it with knowledge of the specific conduct, is enough under paragraph (c)(1), and that route asks nothing about remedial action.²⁵ A supervisor cleared under (c)(2) by prompt corrective steps has been cleared on that route only. The supervisor's earlier efforts under paragraph (b) and the firm's measures under paragraph (a) are separate questions, and the associate's own violation does not disappear because a supervisor responded well to it.