Following is the 27th post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 5 – “Law Firms and Associations,” focusing on the responsibilities of a lawyer who is in a subordinate position at his or her firm. The Rule of Professional Conduct, as revised, is as follows:
Rule 5.2 Responsibilities of a Subordinate Lawyer
(a) A lawyer shall comply with these rules and the State Bar Act notwithstanding that the lawyer acts at the direction of another lawyer or other person.
(b) A subordinate lawyer does not violate these rules or the State Bar Act if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
As with Rule 5.1 in the CBA’s new version of the RPC, Rule 5.2 used to be part of the “Discussion” found at the end of Rule 3-110 (in CBA’s previous RPC). The sentence where this rule was previously found stated: “The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and nonattorney employees or agents.” Rule 3-110 also cited seven different California State Supreme Court cases, each illustrating an example of an attorney being suspended from the practice of law for a specified period of time due to RPC violations.
Rule 5.2 of the CBA’s new RPC, as set forth above, contains two subdivisions. Subdivision (a) says a lawyer must comply with the Rules of Professional Conduct, even if acting under the supervision of another attorney. According to subdivision (b), though, the subordinate lawyer will not be held liable for violating the RPC or State Bar Act IF they are acting in accordance with a supervisory lawyer’s “reasonable resolution of an arguable question of professional duty.” The comment following this rule warns that if a subordinate lawyer believes their supervisor’s resolution of a particular duty would violate the RPC or State Bar Act, he or she is obligated to communicate that to their supervisor.
Rule 5.2 of the American Bar Association (ABA)’s RPC, which carries the same title as the CBA’s Rule 5.2, conveys the same information as the CBA rule, but in fewer words. Briefly, a lawyer is bound by the RPC even if acting under direction of another, but he or she will not be held accountable for violating the RPC if they acted according to a supervising attorney’s direction.
Benefit: Generally speaking, the clear guidelines given to attorneys who are in subordinate roles at their firms should reduce the chances of occurrences of legal malpractice during the client’s representation by a firm.
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