Delegation Versus Abdication

Delegation Versus Abdication

A paralegal who logs more hours on a file than the supervising lawyer may be exactly what Rule 5.3 contemplates. An office manager who negotiates the firm's settlements while the lawyer reads monthly graphs is something else. The line between them separates delegation, which hands tasks to an assistant, from abdication, which hands over the representation itself.

Rule 5.3 assumes that lawyers will use nonlawyer assistants and regulates how. Managers must make reasonable efforts to ensure that the firm has measures giving reasonable assurance that an assistant's conduct is compatible with the lawyers' professional obligations, and a lawyer with direct supervisory authority must make reasonable efforts toward the same end.¹ A duty to supervise presupposes someone to supervise, so the rule accepts delegation as ordinary practice. What it does not say is how much a lawyer may hand over. Two discipline decisions fill the gap. The Louisiana Supreme Court's decision in In re Sledge states the test for proper delegation, and Attorney Grievance Commission of Maryland v. Chapman shows that the test looks to how an arrangement actually operated and not to what it was called.²

The Sledge opinion ties the limit to what a lawyer's services are. It describes the practice of law as the rendition of services for others that call for a lawyer's professional judgment, and it defines that judgment as the educated ability to relate the general body and philosophy of law to a client's specific legal problem. Because that ability is what sets lawyers apart, the public interest is better served when only lawyers act in matters that involve it.³ A client who retains a lawyer is paying for that ability applied to the client's own situation. When the application passes to an assistant, the client receives legal service from someone outside the licensing and disciplinary system. Delegating tasks leaves the judgment where it belongs, and abdication moves it.

Sledge acknowledges that a lawyer sometimes delegates tasks to nonlawyers and says when that is proper: only if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product.⁴ Each condition closes a different gap. The direct relationship keeps the lawyer in touch with the client's circumstances, which are the raw material of professional judgment. Supervision gives the lawyer a way to catch an assistant's mistake before it reaches the client. Complete responsibility puts a lawyer who can be disciplined behind every paper that leaves the office. When any one of the three is missing, some part of the representation is being run by someone else.

The paralegal in that scene works more hours than the lawyer, and the delegation still stands, because every decision about what to do for the client passes through the lawyer. Hours worked therefore decide nothing by themselves. The question is whose judgment governs the client's matter.

The lawyer in Sledge failed all three conditions. The hearing committee concluded that he let his office manager sign up new clients, negotiate settlements, exercise discretion and make decisions and recommendations to clients, conduct discovery, sign pleadings, and manage the office's finances, all without an attorney's supervision, and that she took control of the office and its staff.⁵ His only significant supervision was a review of monthly graphs showing the number of cases settled and the income generated. In place of judgment about particular clients, he relied on vague settlement guidelines meant to govern every matter, which he treated as cookie-cutter work.⁶ The court held that he had abdicated his professional responsibilities over the practice of law and had let his assistants run it with only token supervision.⁷ Graphs measure output. They cannot show whether any particular client's problem received a lawyer's attention, so they count as inadequate monitoring, as the earlier discussion of ongoing review explained, and also as evidence that the lawyer had given up the judgment itself.

One abdication produced several violations at once, and the court found violations of Rules 1.3, 5.3, and 5.5.⁸ The common thread in the charges was a lengthy period of neglect during which the lawyer exercised no meaningful supervision over his nonlawyer assistants, in effect requiring them to practice law in his absence so that the firm could keep operating, and that neglect supports the diligence violation.⁹ The unauthorized-practice charge rested on his allowing the office manager to do the work described above, and Rule 5.5(b) bars a lawyer from assisting a nonlawyer in any activity that constitutes the unauthorized practice of law.¹⁰ An essay answer about an absent lawyer and an assistant making client decisions should therefore name all three rules.

Chapman reaches the same result through a written arrangement. The account comes from the hearing judge's findings as the opinion reproduces them. The lawyer, Mr. Chapman, had a Consulting Agreement with JW Capital, and the judge found that JW Capital "did not 'consult' so much as it managed the work from start to finish."¹¹ The consultant, Mr. Weiskerger, generated much if not all of the loan modification business, conducted the initial client meetings, and set the strategy, while his associates processed the papers, called the banks, and communicated with the clients. Mr. Chapman had essentially no contact with these clients and, apart from isolated instances, met none of the loan modification clients, so all of the substantive work was managed and directed by the consultant.¹²

The lawyer defended on oversight, pointing to regular emails and weekly meetings with the consultant. The judge accepted that the contacts occurred but found no familiarity on the lawyer's part with the clients' matters.¹³ Contact with the person who runs the work is not supervision of the work. The agreement also recited that the consultant served only the firm and no client, and the recital did not change the outcome: the judge found by clear and convincing evidence that the agreement, as Mr. Chapman implemented it, violated Maryland's version of Rule 5.3.¹⁴

The focus on implementation follows from what the rule is for. A recital costs nothing to write, and if recitals controlled, any firm could insulate a handed-off practice by reciting that the consultant works only for the firm. Asking who found the clients, who set the strategy, and who communicated with them tests whether a lawyer's judgment was ever applied to the client's problem, and a label cannot answer that question.

Side by side, the two cases show one defect arising in two ways. In Sledge the delegation grew out of absence and neglect, and the assistants were the lawyer's own office staff. In Chapman it was built into a written agreement with an outside consultant, and the lawyer stayed in regular contact with the person who ran the work. Rule 5.3 reaches employees and retained outsiders alike, as the first section of this chapter explained, so the form of the relationship does not change the analysis. Each case turned on the same two facts: who dealt with the clients, and who decided what to do for them. Because the Chapman account rests on a hearing judge's findings, use it for the proposition that substance controls over labels, and use Sledge for the delegation test itself.

Three shortcuts lead students wrong on this material. Heavy use of assistants is not the violation, because delegation is routine and the violation is ceding the client relationship, the judgment, or the responsibility. Regular contact with the delegatee does not prove supervision, since the Chapman findings accepted that the emails and weekly meetings occurred and still found no familiarity with the clients' matters. A favorable label does not decide the case, because the recital in the consulting agreement did not save the lawyer in Chapman.