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Rule 4-5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
(a) Duties Concerning Adherence to Rules of Professional Conduct. 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 therein conform to the Rules of
Professional Conduct.
(b) Supervisory Lawyer's Duties. Any lawyer having direct supervisory
authority over another lawyer shall make reasonable efforts to ensure that the
other lawyer conforms to the Rules of Professional Conduct.
(c) Responsibility for Rules Violations. A lawyer shall be responsible
for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders the specific conduct or, with
knowledge thereof, ratifies the conduct involved; or
(2) the lawyer is a partner 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.
COMMENT
Subdivision (a) applies to lawyers who have managerial
authority over the professional work of a firm. See terminology. 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. Subdivision
(b) applies to lawyers who have supervisory authority over the work of other
lawyers in a firm.
Subdivision (a) requires lawyers with managerial authority
within a firm to make reasonable efforts to establish internal policies and
procedures designed to provide reasonable assurance that all lawyers in the firm
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.
Other measures that may be required to fulfill the
responsibility prescribed in subdivision (a) can depend on the firm'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 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
supervising lawyer or special committee. See rule 4-5.2. Firms, whether large or
small, may also rely on continuing legal education in professional ethics. In
any event the ethical atmosphere of a firm can influence the conduct of all its
members and the partners may not assume that all lawyers associated with the
firm will inevitably conform to the rules.
Subdivision (c) expresses a general principle of personal
responsibility for acts of another. See also rule 4-8.4(a).
Subdivision (c)(2) defines the duty of a partner or other
lawyer having comparable managerial authority in a law firm, as well as a lawyer
having 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. Partners and lawyers with comparable
authority have at least indirect responsibility for all work being done by the
firm, while a partner 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 partner 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.
Professional misconduct by a lawyer under supervision could
reveal a violation of subdivision (b) on the part of the supervisory lawyer even
though it does not entail a violation of subdivision (c) because there was no
direction, ratification, or knowledge of the violation.
Apart from this rule and rule 4-8.4(a), a lawyer does not
have disciplinary liability for the conduct of a partner, shareholder, member of
a limited liability company, officer, director, manager, associate, or
subordinate. 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.
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 4-5.2(a).
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