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18 Prof. Law. 1 (2007-2008)

handle is hein.journals/proflw18 and id is 1 raw text is: 2007 What You Should Know Can Hurt You: Volume 18 Issue Number 1 Management and Supervisory Responsibility for the Misconduct of Others under Model Rules 5.1 and 5.3 Arthur J. Lachman* A nne, a highly regarded newer associ- ate working on several projects for multiple lawyers and clients at a 100- awyer firm, believes she has too much work to competently and diligently perform her duties on all the matters. JP, one of her supervisors who is a junior partner at the firm and whom she also considers her informal mentor, responds by saying that her workload is about right, and that it's just something she'll have to work through like everyone else. Sure enough, in the course of providing background research relating to a complex transaction for one of JP's corporate clients a couple of weeks later, Anne misses an important line of recent cases on an indemnity issue, and as a result proposes contract language that does not adequately protect the client. Anne says that she was fac- ing three firm deadlines on different projects at the same time, and did the best she could under the circumstances to get all the work done. The firm is administered by a manag- ing partner, a five-member management committee composed of senior partners, and a nonlawyer CEO. It does not have a general counsel, a formal ethics committee, or ombudsperson to consult when ethics issues arise. Anne's conduct implicates the ethical duties of competence and reasonable diligence under Model Rules 1.1 and 1.3. But who at the firm is actually responsible for this ethical breach as a matter of professional discipline? This article will explore that question in detail, focusing on whether her supervisor, JP, or the managing lawyers of the firm can be held responsible for her misconduct. Management, Supervision, & Subordinate Duties: The Model Rules Framework The Model Rules of Professional Conduct do not provide for discipline against the law firm itself. In fact, only New York's and New Jersey's ethics codes provide for law firm discipline.1 In every other jurisdiction, individual lawyers are responsible for their own conduct in violation of the ethics rules.2 Under Rule 5.2(a), Anne is responsible for her incompetence and lack of dili- gence on behalf of the firm's client. That would be true even if she acted at the direction or supervi- sion of another person. Whether Anne will be able to take advantage of the defer to superiors defense under Rule 5.2(b) may depend on how the issue is framed. If the focus is on the work Anne did for the client, the rule does not seem to provide cover because her failure to act competently and diligently is not an an arguable question of professional duty, and there was nothing for a superior to resolve.3 On the other hand, a recent ABA formal ethics opinion, discussed in detail below, suggests that whether a subordinate lawyer is in an excess workload situa- tion may indeed constitute an arguable question of professional duty in certain circumstances.4 Even under that opinion, however, JP's advice to Anne to suck it up would likely not be consid- ered a reasonable resolution of any arguable question of professional duty under Rule 5.2(b), so it appears that Anne will be responsible for her misconduct under the ethics rules in any event.5 As a leading commentator recently suggested, asso-

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