Potential Liability for Lawyers Employing Law Clerks

Publication year1983
12 Colo.Law. 1243
Colorado Lawyer

1983, August, Pg. 1243. Potential Liability for Lawyers Employing Law Clerks


Vol. 12, No. 8, Pg. 1243

Potential Liability for Lawyers Employing Law Clerks

by Lynne E. Moore

Law clerks are an integral part of today's practice. Law firms, corporations and public service organizations hire clerks as temporary assistants or as a prelude to permanent employment. However, little time or thought is devoted to potential malpractice liability, disciplinary proceedings or both that lawyers expose themselves to by hiring and using law clerk assistance.(fn1) This is not to say that the employer-law clerk relationship should be avoided. Law clerks receive valuable "hands-on" training, while employers gain a researcher, interviewer and messenger---someone to whom they can delegate the more routine tasks at less cost to clients and themselves.

This mutually advantageous association has long been recognized by the courts. As early as 1887, in the case Mahoney v. Middlesex County Commissioners,(fn2) the Massachusetts Supreme Court said: "Attorneys must employ clerks. They cannot transact all their business in person." Currently, the employment of clerks is not only recognized, but encouraged. Ethical Consideration ("EC") 3-6 of the Code of Professional Responsibility ("Code") states:

A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation 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 services more economically and efficiently.

The economical and efficient delivery of legal services conforms to Canon 2, which states that the lawyer should assist the legal profession in fulfilling its duty to make legal counsel available

Nonetheless, lawyers must not close their eyes to the attendant liabilities. The case law, formal and informal opinions of the American Bar Association ("ABA"), and the Disciplinary Rules ("DR") make it quite clear that lawyers are ultimately responsible for the conduct of their clerks and other employees. For example, lawyers may be vicariously liable for their clerks' conduct.(fn3) Their potential liability also arises from negligent hiring, inadequate supervision and improper delegation of authority.(fn4) All of these topics are discussed below.

Respondeat Superior

The rules of vicarious liability apply to legal malpractice cases.(fn5) Lawyers may be found liable for the torts of their clerks acting within the scope of their employment. Of course, lawyers generally will not be liable for the acts of employees who have acted outside the ordinary scope of their employment.(fn6) Acts within the ordinary scope of employment have been defined as those acts which are of a kind that the employee was hired to perform, occur substantially within the authorized limits of time and space and are actuated, at least in part, by a purpose to serve the employer.(fn7) However, even if a law clerk's acts fall outside the scope of employment, vicarious liability may still attach if the attorney ratifies and adopts those acts.(fn8)

An early case in which the concept of respondeat superior is discussed in a situation involving a law clerk was In re McGuinness.(fn9) In this case, settlement funds intended for a client had been given to the law firm's clerk. The law clerk kept part of the money. The former client sued the law firm to recover the balance of the settlement funds. The court found that, although the attorneys had acted in good faith toward their client, they were nonetheless liable for the balance. The court stated that the lawyers were:

... attorneys of record, the agreement was [made] with them, they received the money in settlement, and if, through carelessness or confidence in their clerk, they failed to discharge the legal obligation imposed upon them ...;

they were responsible for the missing money.(fn10)

In another situation where an attorney was held vicariously liable, general office staff members were involved.(fn11) The defendant attorney was charged with misrepresenting to his client the true status of her affairs in one matter and delay and inexcusable neglect in another. The defendant attorney argued that information and deadlines were not brought to his attention and that


employees had failed to carry out his directions. The court was not impressed with the attorney's assertions:

... [even] if his employees had failed to carry on in his absence, no matter what the reason, it was his ultimate responsibility to see that his business went forward and if in any sense delayed by an inefficient office staff, then he had the duty to correct it.(fn12)

In another case, an attorney was held responsible for the acts of his secretary.(fn13) The secretary was informed of some factual data that she did not pass on to the attorney. The court found that an obligation developed at the time the defendant attorney's...

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