CHAPTER 5 - 5-1 FIRM MANAGEMENT

• Jurisdiction: United States

5-1 Firm Management

5-1:1 Supervisory Responsibility

Lawyers with management authority in a firm are responsible for establishing measures that give reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.¹ The same supervisory responsibility applies to lawyers with management authority over nonlawyer employees.² The commentary to Rules 1.1, 1.2, and 5.3 deals with duties related to "out-sourced" work, making it clear that however the lawyer chooses to do her work, she will bear the ultimate responsibility for those under her supervision.³ The responsibility to supervise nonlawyers with regard to such issues as the safeguarding of client property is nondelegable.⁴

Lawyers with supervisory authority over another lawyer must make reasonable efforts to ensure that the subordinate lawyer conform to the Rules of Professional Conduct.⁵ A lawyer will be responsible for the violation of an ethical rule by another lawyer in the firm if the lawyer orders or, with specific knowledge, ratifies the conduct⁶ or the lawyer has management authority over the other lawyer, knows of the conduct, and fails to take remedial action when the conduct can be avoided or mitigated.⁷

The provisions of Rule 5 create ethical duties and responsibilities on attorneys with management authority and on all attorneys in a firm relative to the conduct of their colleagues. As with most states' discipline systems, Connecticut does not provide for "firm" discipline. Grievance complaints that complain only about a firm will be returned by Bar Counsel with instructions to re-file them against specific attorneys. Complaints alleging misconduct both by a firm and an individual will be screened out as to the firm and processed only as to the individual member.⁸ Thus, the focus is most often on the offender and much less frequently on the supervisor. Many commentators do not view the Rule 5 regime as creating vicarious ethical jeopardy, but rather only ethical liability for failure to supervise or for affirmative acts such as ordering or ratifying improper conduct. This is one way in which the ethical regime departs from tort where vicarious liability is an accepted principle. However, there have been cases where what appears to be vicarious ethical liability was imposed.

In one matter, a supervising attorney was disciplined when he became aware that a subordinate attorney was destroying a document in a firm file to avoid having to disclose it at a deposition.⁹ Rules 5.1(a) and (c) were implicated in a matter where one member of a firm bid on a property being sold by one of his partners as a committee of sale.¹⁰ Rule 5.1 was found violated where an attorney read and signed a complaint prepared by an associate that contained obvious flaws.¹¹ Rule 5.1 was used to find an attorney ethically responsible for the actions of his attorney father who had not paid off several mortgages.¹² An attorney was reprimanded when he assigned a matter to a per-diem employee attorney and failed to ensure that it was properly pursued.¹³

A common thread in the Rule 5.1 jurisprudence is that many of the attorneys found to have violated the rule are now either suspended for long periods of time or disbarred. This...