Marching orders: when to tell your boss "no".

• Author: Seger, Andrew J.

A freshly minted lawyer working at a law firm, government office, or corporation often experiences intense desire and pressure to succeed by impressing more senior lawyers. This pressure to succeed could cause a new lawyer to overlook professional responsibilities when following another lawyer's directions. However, all lawyers, including new lawyers taking direction from senior lawyers, are subject to the same rules of professional conduct. (1) As such, every lawyer must remain cognizant of his or her own professional responsibilities, and cannot blindly rely on a supervising lawyer's instructions or judgment.

This article addresses the embattling question of when and to what extent a subordinate lawyer may rely on the direction of a supervising lawyer when confronted with an ethical dilemma. Paramount to this discussion is recognizing the subordinate lawyer's duty to adhere to his professional obligations, despite inconsistent instructions from a supervising lawyer. Next, it is important that a subordinate lawyer is able to identify situations in which he or she may rely on a supervising lawyer's expertise and instruction, and understand the implications of such reliance. Finally, and most importantly, a lawyer should know that it is unnecessary to traverse the battlefield alone, as there are several resources for resolving such a situation without compromising his or her professional integrity or career.

The Subordinate Lawyer Rule

Model Rule of Professional Conduct 5.2 provides that a subordinate lawyer is not excused from ethical responsibilities merely because he or she was acting at the direction of another lawyer. The rule applies to all lawyers working under the supervision of another, including lawyers directly employed by other lawyers, (2) whether in the private or public sector; (3) lawyers leased to another lawyer through a staffing company; (4) and lawyers working under a contract with another lawyer. (5) Most states' professional rules are identical (6) to the rule adopted in Florida (7) and by the ABA, which provides:

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty

Thus, a subordinate lawyer cannot blindly follow a supervising lawyer's instruction, but is permitted to rely on the judgment of a supervising lawyer only in cases in which there is an "arguable question of professional duty" and the supervising lawyer's resolution of the issue is reasonable. (8)

When there is no "arguable question of professional duty," a subordinate lawyer must adhere to the rules of professional conduct, even if it conflicts with instructions from a supervising lawyer. (9) This is true even if following the ethical rules could cause the subordinate lawyer to be fired. (10) For instance, an overworked public defender who knows that she cannot take on another case while providing competent representation to all of her clients must decline to accept the next file her supervising attorney assigns her. (11) The public defender must not accept the next case even if her su- pervising lawyer believes that she can, or should be able to, handle the caseload. (12) Thus, in order for a subordinate lawyer to determine whether to rely on the instruction of a superior lawyer or to break rank, a subordinate lawyer must identify whether a situation presents an "arguable question of professional duty." (13) Unfortunately, not all cases are as simple as the public defender who knows she cannot accept another case.

Arguable Questions of Professional Duty

Generally, there are three types of situations that may create an "arguable question of professional duty." The first arises from unknown facts: a lawyer's professional responsibility depends upon the resolution of a factual question, and once the factual question is resolved, the lawyer's professional duty is clear.

For instance, a Pennsylvania lawyer became concerned when a supervising attorney instructed him not to communicate a settlement offer to his client, potentially violating Rule 1.4 regarding client communication. (14) The subordinate lawyer did not know whether the supervising attorney had already communicated the offer to the client, or if the client had previously authorized the firm to reject offers at certain dollar amounts. (15) In this situation, the subordinate lawyer had a duty to investigate those issues in order to determine whether he had a professional duty to communicate the offer to his client. (16) After resolving the factual issue, the subordinate lawyer's duty would presumably become clear: If the client did not know of the offer, or had not previously authorized rejection of all offers at certain amounts, the lawyer must communicate the offer to the client despite his supervising attorney's instruction.

The second situation giving rise to an "arguable question of professional duty" involves an unanswered question of law. When a lawyer's professional duty turns...