Firm-Wide Measures by Managers

Firm-Wide Measures by Managers

Rule 5.3 gives lawyers two separate duties toward nonlawyer assistants, and the first belongs to the people who run the firm. Subsection (a) requires "a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm" to make reasonable efforts to ensure that the firm has in effect "measures giving reasonable assurance" that a nonlawyer's conduct is compatible with the lawyers' professional obligations.¹ The text breaks into four parts, and a manager's compliance is easiest to test by taking them in order.

Function, not title, answers the first question. A lawyer on a committee that sets the firm's policy, budget, and hiring holds comparable managerial authority without any equity stake, and so does a group of lawyers who exercise that authority jointly, because the rule reaches a lawyer who holds it "individually or together with other lawyers."² A firm cannot escape the duty by giving its decision-makers some title other than partner.

The rule falls on managers because systems are their work. Training, confidentiality safeguards, and the budget behind them are firm-level choices that a lawyer working beside one assistant can seldom make alone. A law office's ethical integrity depends in substantial part on the conduct of its administrators, secretaries, paralegals, receptionists, and other assistants, especially but not only because they have access to confidential information.³ A court applying the parallel rule for supervising lawyers explained the other half of the point: if discipline reached only the individual who committed the violation, the environment that fostered the misconduct would be allowed to continue.⁴ The concern weighs more heavily for nonlawyers, because the expected level of supervision and instruction of assistants is higher than for another lawyer in the firm. Assistants lack a lawyer's professional training and are not themselves subject to disciplinary action.⁵

What the managers must build is a system, and the duty exists whether or not any manager personally oversees a given assistant. The separate duty of a lawyer "having direct supervisory authority over the nonlawyer" follows one person's work and has its own section next.⁶ A managing partner who never meets the firm's paralegals still owes the firm-wide duty. A signed confidentiality agreement shows the kind of measure the duty contemplates. It is a wise and salutary step, both as a reminder that confidentiality is a continuing obligation and as a direct means of enforcement if someone violates confidentiality after leaving the office.⁷

Because the standard is reasonable efforts and reasonable assurance, a manager is judged on the system built and not on whether every assistant behaved. The decisions that explain this standard arise under Rule 5.1(a), the parallel rule for supervising lawyers, so they are interpretive aids and not holdings about nonlawyers. They help because Rule 5.3 is written in language directly parallel to Rule 5.1.⁸ In re Anonymous Member of S.C. Bar, the court said the liability under the lawyer rule is not vicarious liability for another attorney's unethical conduct. The subsection instead places on all partners a responsibility to enact measures giving "reasonable assurance" that the firm's lawyers will meet their ethical obligations.⁹ By the same logic, a manager who built sensible systems does not breach Rule 5.3(a) merely because one assistant erred.

Board of Overseers v. Warren, also a lawyer-supervision case, shows a firm failing the test. The court reached its conclusion despite the single justice's factual findings. When a firm's practices and policies do not require its leadership even to consider whether it has an ethical obligation to report a colleague in the circumstances presented, the court held as a matter of law that the firm lacked "measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility."¹⁰ The inquiry looked to the firm's practices and policies, which is where Rule 5.3(a) points managers: to a system in place before trouble arrives.

Two firms show which fact moves the answer.

Two errors tempt students on a stem like this one. The first treats the leak at the second firm as proof of a violation, when the rule asks whether the managers built reasonable measures and does not guarantee compliance. The second excuses the managing partner at the first firm because that partner never supervised the paralegal personally, when the firm-wide duty does not depend on direct supervision. Put one question to the facts: did the lawyers in charge make reasonable efforts to have working measures in place before the problem arose?