Supervising your lawyers and staff: avoiding serious ramifications.

• Jurisdiction: United States
• Author: Curtis, Debra Moss
• Date: 01 December 2002

For many lawyers, a good staff is the most critical component of producing excellent legal services. After all, a well-trained, properly delegated and supervised staff may complete much of the necessary paperwork at a law firm, thereby allowing the lawyer to focus on tasks specific to lawyering. (1) In fact, since many attorneys carry a burden of needing to produce the greatest quantity of work in the shortest amount of time, delegation to staff has become a necessary, but troublesome, reality. (2) With this reality in mind, attorneys always must remember to keep a close eye on their hires, for, under the Rules Regulating The Florida Bar, they remain liable for the ultimate work product. (3)

Rule 4-5.3 specifically addresses this responsibility. First, the rule deals with nonlawyer assistants, laying out different responsibilities for lawyers depending upon the level of the attorney's responsibility over a nonlawyer's conduct. (4) Under the rule, any lawyer having "direct supervisory authority" (5) over nonlegal staff is responsible for making "reasonable efforts" to ensure that the nonlawyer's conduct is consistent with the attorney's own professional obligations. (6) The lawyer will be held responsible for ordering, or ratifying with knowledge, any specific behavior by the nonattorney where the lawyer himself or herself is prohibited from the conduct. (7)

A partner in a law firm has even more responsibilities: A partner must make "reasonable efforts" to ensure that the firm has established procedures to keep nonlegal staff conduct compatible with the attorneys' professional obligations. (8) In addition, a partner may be responsible for conduct of his or her nonlegal staff, where that conduct is inconsistent with attorneys' professional obligations--even if the partner neither ordered it nor ratified it. (9) A partner also may be responsible for a nonlegal staff member's conduct if the attorney has direct supervisory authority over the employee, knew that improper conduct was taking place, and failed to take appropriate mitigatory or remedial action. (10)

Last, Rule 4-5.3 reminds lawyers that although work may be delegated to those designated as paralegals or legal assistants, attorneys are ultimately responsible for work produced by these employees. (11)

The rules also govern relationships between subordinate and supervising attorneys within a single law firm. (12) Rule 4-5.2 ensures that subordinate lawyers take responsibility for their own actions, even when they are under orders from supervising attorneys. (13) It also ensures that subordinate lawyers are absolved of responsibility for improper actions as long as they had followed the direction of a supervising attorney's "reasonable resolution" of an "arguable question" of professional obligation. (14) The comment to this rule makes it clear that subordinate attorneys only are in the clear when dealing with a question of ethics if there is more than one reasonable answer: If there is only one reasonable solution to an ethical dilemma, both the subordinate and supervising attorneys are responsible for following and adhering to that conduct; if the dilemma has more than one reasonable solution, the supervisor's reasonable resolution of the issue will insulate the subordinate attorney from any ramifications of that decision. (15)

In order to assist attorneys in properly navigating these rules, the Professional Ethics Committee of The Florida Bar has issued several written opinions in response to questions from licensed attorneys involving the supervision of staff conduct in marketing, letterhead distribution, trust accounts, real estate closings, signature powers, client interviewing, and hiring situations.

In Opinion 89-4, the committee wrote that Rule 4-5.3, among other rules, holds nonlegal staff to the same obligations as attorneys regarding solicitation of new business. (17) Specifically, the opinion states that a nonlawyer may be hired only to engage in the same solicitation of business activities as the lawyer would be...