(c) A lawyer shall be
responsible for another lawyer's violation of the Rules of Professional Conduct
if:
(1) the lawyer orders or, with knowledge
of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a principal or has
comparable managerial authority in the law firm in which the other lawyer
practices, or has direct supervisory authority over the other lawyer, and knows
of the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action to avoid the consequences.
Comment
[1] Paragraph
(a) applies to lawyers who have managerial authority over the professional work
of a firm or legal department of an organization. See Rule 1.0(d). This
includes members of a partnership, the shareholders in a law firm organized as
a professional corporation, and members of other associations authorized to
practice law; lawyers having comparable managerial authority in a legal
services organization or a law department of an enterprise or government
agency; and lawyers who have intermediate managerial responsibilities in a
firm. Paragraph (b) applies to lawyers who have supervisory authority over the
work of other lawyers in a firm or organization.
[2] Paragraph (a) requires lawyers with
managerial authority within a firm or organization to make reasonable efforts
to establish internal policies and procedures designed to provide reasonable
assurance that all lawyers in the firm or organization will conform to the
Rules of Professional Conduct. Such policies and procedures include those
designed to detect and resolve conflicts of interest, identify dates by which
actions must be taken in pending matters, account for client funds and property
and ensure that inexperienced lawyers are properly supervised.
[3] Other measures that may be required to
fulfill the responsibility prescribed in Paragraph (a) can depend on the firm's
or organization's structure and the nature of its practice. In a small firm of
experienced lawyers, informal supervision and periodic review of compliance
with the required systems ordinarily will suffice. In a large firm or
organization, or in practice situations in which difficult ethical problems
frequently arise, more elaborate measures may be necessary. Some firms, for
example, have a procedure whereby junior lawyers can make confidential referral
of ethical problems directly to a designated principal or special committee.
See Rule 5.2. Firms and organizations, whether large or small, may also rely on
continuing legal education in professional ethics. In any event, the ethical
atmosphere of a firm or organization can influence the conduct of all its
members and the principals and managing lawyers may not assume that all lawyers
associated with the firm or organization will inevitably conform to the
rules.
[4] Paragraph (c) expresses
a general principle of personal responsibility for acts of another. See also
Rule 8.4(a).
[5] Paragraph (c)(2)
defines the duty of a principal or other lawyer having comparable managerial
authority in a law firm, as well as a lawyer who has direct supervisory
authority over performance of specific legal work by another lawyer. Whether a
lawyer has such supervisory authority in particular circumstances is a question
of fact. Principals and lawyers with comparable authority have at least
indirect responsibility for all work being done by the firm, while a principal
or manager in charge of a particular matter ordinarily also has supervisory
responsibility for the work of other firm lawyers engaged in the matter.
Appropriate remedial action by a principal or managing lawyer would depend on
the immediacy of that lawyer's involvement and the seriousness of the
misconduct. A supervisor is required to intervene to prevent avoidable
consequences of misconduct if the supervisor knows that the misconduct
occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented
a matter to an opposing party in negotiation, the supervisor as well as the
subordinate has a duty to correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under
supervision could reveal a violation of Paragraph (b) on the part of the
supervisory lawyer even though it does not entail a violation of Paragraph (c)
because there was no direction, ratification or knowledge of the
violation.
[7] Apart from this rule
and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct
of a principal, associate or subordinate. Moreover, this rule is not intended
to establish a standard for vicarious criminal or civil liability for the acts
of another lawyer. Whether a lawyer may be liable civilly or criminally for
another lawyer's conduct is a question of law beyond the scope of these
rules.
[8] The duties imposed by
this rule on managing and supervising lawyers do not alter the personal duty of
each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule
5.2(a).
