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Attorneys Are Responsible for Actions of All Employees

By Joseph Balkenbush

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The Oklahoma Rules of Professional Conduct (ORPC) mandate that attorneys are responsible for the conduct of all persons in their employ.1 That includes not only attorneys, but also all legal support staff including legal assistants, receptionists, expert witnesses and perhaps even the janitorial staff.

ORPC Rule 5.1 - Responsibilities of Partners, Managers and Supervisory Lawyers states in subsection (a):

A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall 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.

This section of the rule usually presents few issues because all lawyers have been well-educated regarding ethics and professional responsibility and are particularly mindful of same. Subsections (b) and (c) of Rule 5.12 provide further clarification regarding the supervising lawyer’s obligations.

Next, ORPC Rule 5.2 - Responsibilities of a Subordinate Lawyer subsections (a) and (b) states:

(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.”3

If, after reviewing subsection (b), you’re wondering if it was purposefully drafted to be vague to allow broad interpretation, the obvious answer is yes. An attorney cannot “stick their head in the sand” if they are instructed to take action that violates the ORPC. If a supervising attorney and subordinate attorney disagree regarding whether a certain act is in conflict with the rules, so long as the supervising attorney’s resolution of the issue is reasonable, logical and sensible, the subordinate attorney will not be prosecuted when they follow the direction of the supervising attorney. The comments to Rule 5.2 provide a well-stated explanation of this section of the rule.

SUPERVISING NONLAWYERS
Most lawyers are aware of the responsibility to manage and supervise subordinate lawyers, but for some reason many are not equally concerned with their responsibility for the acts of nonlawyer assistants. ORPC Rule 5.3 - Responsibilities Regarding Nonlawyer Assistants sets forth our responsibilities.4

In an article in the January 2018 ABA Journal titled “Supervision is the key to effective employment of paralegals,” author David L. Hudson Jr. wrote “the use of legal assistants and by attorneys continues to grow, mainly due to the cost of an attorney compared to the cost of a paralegal. In Missouri v. Jenkins, a 1989 school desegregation case, the U.S. Supreme Court stated that paralegals provide a “cost-effective delivery of legal services.”5 Those of us who employ them are well aware of their value to the efficient operation of a law practice. There are so many things they can do to ease the never-ending list of things that we attorney have to get done.

As Hudson notes, because of the supervisory role imposed by Rule 5.3, “attorneys must be aware of ethical issues that can and do arise from the use of paralegals and legal assistants.” This rule contains the same language that Rules 5.1 and 5.2 contain, that lawyers “shall make reasonable efforts to ensure” those working under them comply with the “professional obligations of the lawyer.”

The rule goes on to state a lawyer who has supervisory authority over nonlawyers “shall be responsible for such conduct of a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.”

As usual, the comments to the rules provide a clearer explanation. Comment 2 to Rule 5.3 states:

Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must assure that such assistants receive appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

There are so many things lawyers have to do well to run an efficient, ethical and profitable law practice. A legal support staff member can often perform a task more quickly and efficiently than a lawyer can, but attorneys must be careful to not delegate too much work to them, nor instruct them to perform tasks they should not be doing.

In his article, Hudson went on to say, “Some experts believe that this is the No. 1 ethical concern for attorneys, i.e., maintaining adequate supervision over nonlawyer employees.” Hudson also quotes Keith A. Call, who has written about ethical issues involving paralegals in the Utah Bar Journal. Call said that “the biggest minefield I see is overworked or inattentive lawyers failing to provide adequate direction and supervision, leaving the paralegal to figure things out on [their] own... All too often, overworked or careless lawyers can be tempted to dump too much responsibility on the paralegal and fail to follow up with adequate supervision.” That can easily result in a paralegal being overworked and overwhelmed and not paying as much attention to detail as they usually would.

SPECIFIC CONCERNS
There is also the possibility that we place so much responsibility on our legal assistant that they walk a fine line between doing their job and practicing law. Many paralegals have been working with the same attorney for a long time and have acquired by a sort of osmosis a significant amount of knowledge of the area of law their attorney practices. Sometimes, in an effort to help the attorney and/or client, they improperly give the client the advice they have heard the attorney give in what they believe is a similar circumstance, only to find that an “and” or “but” changed the answer.

One area lawyers should always discuss with a legal assistant is the absolute necessity of maintaining client confidentiality. Not doing so can be a reason for termination of employment. As is evident from a reading of ORPC Rule 5.3, attorneys are responsible for nonlawyer employee violating client confidentiality. Rule 1.6 - Confidentiality of Information, and the duty of confidentiality, must be clearly communicated
to all legal support staff.

MAKE REASONABLE EFFORTS
Having said all that, attorneys can rely on a key phrase contained in the rules, that is to “make reasonable efforts.” That can be accomplished as easily as having firm policies and procedures in place which require that all employees be familiar with the ORPC. It is also advisable that each new employee be provided with a copy of the ORPC and to have a firm meeting annually in which the ORPC are discussed.

ABOUT THE AUTHOR
Joe Balkenbush is OBA ethics counsel. He graduated with his J.D. from the OCU School of Law in 1986, has been in private practice and was a district court judge before he took the position of ethics counsel. Have an ethics question? Get tips, FAQ answers, ethics opinions and more online at www.okbar.org/ec or contact Mr. Balkenbush at ethicscounsel@okbar.org or 405-416-7055; 800-522-8065. All inquiries are confidential per Oklahoma law.

1. ORPC Rule 5.1(a), www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=448960.
2. ORPC Rule 5.1(b), (c), www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=448960.
3. ORPC Rule 5.2, www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73713.
4. ORPC Rule 5.3, www.oscn.net/applications/oscn/deliverdocument.asp?=413000.
5. David L. Hudson Jr., “Supervision is key to effective employment of paralegals,” ABA Journal, January 2018, www.abajournal.com/magazine/article/assistant_supervision_employment_paralegals.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 24 (December 2018)