Legal Malpractice Forum
| Publication year | 1979 |
| Pages | 2224 |
1979, November, Pg. 2224. Legal Malpractice Forum
The doctrine of respondeat superior is applicable to the law firm. The Code of Professional Responsibility(fn1) espouses the principal in two statements: Paragraph 9 of the Preamble to the Code of Professional Responsibility states:
Ethical Consideration 3-6 of the Code statesA lawyer must ultimately be responsible for the conduct of his employees and associates in the course of the professional representation of the client.(fn2)
...delegation [of duty] is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently.(fn3)
A recent professional responsibility journal gives a succinct statement of the principle:
The basic rules of agency and vicarious liability apply to legal malpractice; an attorney may be liable for the negligent acts of partners, associates, legal assistants, secretarial and clerical personnel, and others acting within the scope of the authority they have received from the attorney. He is not liable for the acts of those who have exceeded the authority or who have acted outside the ordinary course of the attorney's practice.(fn4)
Early case law held that a lawyer would be responsible for the misfeasance or malfeasance of an employed law clerk.(fn5) In the McGuinness case, defendant attorneys had represented plaintiff in a personal injury suit. The firm's law clerk negotiated a settlement. The settlement money was entrusted to the clerk to be paid over to the plaintiff. Part of the settlement funds were fraudulently retained by the clerk. In a suit by the plaintiff to recover the balance of the settlement, the court held that though the attorneys acted honestly toward the client and were defrauded by their clerk, they must be liable for the balance of the settlement payment and were not discharged pro tanto by their payment to the clerk.
In Johnson v. Sprague,(fn6) an endorsement of a writ was shown to have been made by a clerk without the authority of his attorney employers. It was competent for the court to find from the entry of the writ and other proceedings that they had ratified...
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