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Am I My Brother’s Keeper? What It Means to be a Supervising Attorney Under the Rules of Professional Conduct

November 27, 2018
Attorney at Law Magazine - Minnesota Edition
Author: Brooke D. Anthony

Plaintiffs in attorney malpractice claims typically include the individual attorney and the law firm as named defendants. It is a practice that is intuitively, substantively, and procedurally correct.

The individual attorney clearly has professional obligations to the client. The firm also has professional obligations. In particular, the obligations of the members of the law firm to supervise the conduct of the firm’s lawyers is more fully described in Rule 5.1 of the Rules of Professional Conduct. That rule informs as to how and when we become “our brother’s keeper”.

Rule 5.1 has two parts. The first part addresses the obligations of lawyers with “managerial authority over the professional work of a firm.” That includes members of a partnership, shareholders of a law firm, and members of other associations authorized to practice law. It also applies to in-house legal departments and government agencies. The second part of Rule 5.1 addresses attorneys with direct supervisory authority over other attorneys.

THE DUTIES OF ATTORNEYS WITH “MANAGERIAL AUTHORITY”

Rule 5.1(a) requires that partners in a firm or others with managerial authority “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” The Rule appears, however, to beg the question of whether a firm “must” have a lawyer with managerial authority. May a firm of all partners evade Rule 5.1(a) by simply not appointing a partner with managerial authority? The short answer to that question is that if the firm fails to designate a particular person to be the manager, it then becomes a fact question as to which lawyer(s) “possess” the de facto role of manager. Regardless of whether a law firm designates a manager, it is clear that a firm cannot simply assume its lawyers will behave ethically. The firm’s leadership or management must make “reasonable efforts” to establish “measures” to “reasonably assure” that all lawyers within the firm comply with the Rules. Read more.