The Direct Supervisor's Duty

Every file with a paralegal working on it raises a practical question: which lawyer answers for what the paralegal does? Rule 5.3(b) answers it for the lawyer who directs the work. It provides that "a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer."¹ The sentence has three working parts. The trigger is direct supervisory authority over the particular nonlawyer. The duty is reasonable efforts. The benchmark is the lawyer's own professional obligations.

Subsection (a) works at a different level. It asks a partner, or a lawyer with comparable managerial authority, to make reasonable efforts to ensure that the firm has measures in effect giving reasonable assurance that nonlawyers' conduct is compatible with lawyers' obligations.² Subsection (b) is personal. It attaches to a lawyer because of that lawyer's relationship to one assistant's work.

Because the trigger is authority over the work, rank does not decide who owes the duty. A lawyer who directs an assistant's work has direct supervisory authority, whether that lawyer is a senior partner or a junior associate.

Each subsection states its own duty, and one does not stand in for the other. The managing partner's sound policy does not tell the associate how to supervise the paralegal's daily work, and the associate's careful oversight does not build the firm's systems. A single lawyer can owe both: a partner who sits on the management committee and also directs a paralegal's matters answers under (a) for the firm's measures and under (b) for the assistant at the next desk. Whether a lawyer also answers for an assistant's own misconduct is a separate question, taken up later in this chapter.

The benchmark is the lawyer's own obligations because of who assistants are. They lack legal training and are not subject to professional discipline, so the supervisor's measures must account for that.³ The comment accordingly tells lawyers to give assistants appropriate instruction and supervision on the ethical side of their employment, particularly the obligation not to disclose information relating to the representation of a client, and to be responsible for their work product.⁴ An assistant's careless disclosure becomes the lawyer's problem, and the duty exists to prevent that.

The standard of reasonable efforts keeps the duty realistic, but it is not lenient. A lawyer may not simply hope that the right course will be obvious to nonlawyers or that ethical expectations will be absorbed by assistants merely because they work in a law office. The expected level of supervision and instruction is higher than for another lawyer in the firm, since a nonlawyer lacks professional training and faces no discipline.⁵ The next section describes what such efforts consist of.

The duty fails most clearly when the supervisor makes no effort at all. In re Sledge, the Louisiana Supreme Court applied Rule 5.3, which it described as defining the lawyer's responsibilities for supervising nonlawyer assistants.⁶ The lawyer had been absent from his office for a lengthy period while files languished without work. The court saw the common thread in the charges as his failure to exercise any meaningful supervision over his nonlawyer assistants, which in effect required them to practice law in his absence so that the firm could keep operating.⁷ He held direct authority and made no effort to direct or check the work. The harms the benchmark guards against, neglected clients and nonlawyers doing a lawyer's work, followed from the absence of supervision.

A paralegal's lapse, taken alone, does not decide a 5.3(b) question. What decides it is what the lawyer did before the lapse.

Hypothetical Illustration

The first lawyer directs a paralegal's client intake and client communications. He never explains the confidentiality limits or the boundaries of the paralegal's role, and he never reviews what the paralegal tells clients. The paralegal predicts the outcome of one client's case and mentions another client's matter in passing. The lawyer made no effort to ensure the paralegal's conduct was compatible with his obligations, so the duty went unmet.

The second lawyer directs a paralegal doing the same intake and communications. She explains the confidentiality limits and the boundaries of the paralegal's role, reviews drafts and client communications, and spot-checks files. The paralegal still mentions a client's name to an outsider once. The lawyer made reasonable efforts, so the lapse alone does not breach 5.3(b).

The two scenes differ in one fact: what the lawyer did before the lapse. That fact controls because the rule measures effort and does not guarantee results. The second paralegal's slip shows only that supervision is imperfect, which the rule tolerates. The instruction the first lawyer withheld is the missing effort.

The Direct Supervisor's Duty

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