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OBA General Counsel

Lawyers’ Duty to Supervise Non-Lawyer Assistants

By Gina Hendryx, General Counsel

At some time in most forms of legal practice, the lawyer will employ the assistance of a non-lawyer. These persons include the traditional secretary and bookkeeper, but more and more lawyers are employing the services of non-traditional aides including engineers, nurses, computer specialists and lobbyists. Regardless of title, non-lawyers are not bound by the ethical rules that apply to attorneys. Therefore, the rules require lawyers to make reasonable efforts to ensure that the conduct of non-lawyer employees or independent contractors is compatible with the professional obligations of the lawyer.

Oklahoma Rule of Professional Conduct 5.3 sets out the lawyer’s responsibilities regarding non-lawyer assistants. As with Rule 5.1, lawyers with managerial authority over non-lawyers must make reasonable efforts to establish internal policies and procedures designed to provide assurance that the non-lawyers will act in a way compatible with the Rules of Professional Conduct. These policies and procedures should include appropriate instruction and supervision pertaining to the ethical aspects of their jobs. Of particular importance is the duty of confidentiality owed to the clients and the obligation not to reveal information relating to a representation. In State ex. Rel. Okla. Bar Ass’n v. Mayes, 977 P.2d 9 (Okla. 1999), a lawyer was found to have violated Rule 5.3 by failing to make reasonable efforts to ensure that non-lawyer assistant adhered to his professional obligations. He was also found to have failed to take reasonably remedial measures.

A lawyer who turns over the day-to-day operation of a law office to a non-lawyer assistant does so at his or her own peril. In State ex. rel. Okla. Bar Ass’n v. Patmon, 939 P.2d 1155 (Okla. 1997), the lawyer regularly allowed a non-lawyer assistant to sign the lawyer’s name and file court documents with oversight. The assistant filed a misleading motion and the lawyer was disciplined for inadequate supervision.

Maintaining client funds is a non-delegable fiduciary responsibility. Lawyers may employ non-lawyer assistants such as bookkeepers and/or accountants to assist in fulfilling this duty, however lawyers must provide adequate training and supervision to ensure that ethical and legal obligations are met. With regard to client funds, “there must be some system of timely review and internal control to provide reasonable assurance that the supervising lawyer will learn whether the employee is performing the delegated duties honestly and competently.” In re Cater, 887 A.2d 1 (D.C. 2005).

A lawyer who is a partner or a direct supervisor of a non-lawyer has an obligation to take remedial action if the lawyer learns of misconduct by the non-lawyer in time to avoid or mitigate the consequences of the conduct. In State ex. rel. Okla. Bar Ass’n v. Taylor, 4 P.3d 1242 (Okla. 2000), the lawyer was disciplined for ratifying the conduct of his wife/office manager who improperly endorsed a client’s settlement checks.

Courts generally hold the following as non-delegable tasks:
  1. Establishing a lawyer/client relationship
  2. Maintaining direct contact with clients
  3. Giving legal advice
  4. Exercising legal judgment

Review your office policies frequently. Always keep control over your trust account and educate your staff on the rules you must follow.

Originally published in the Oklahoma Bar Journal -- May 14, 2011 --  Vol. 82, No. 14