Following is the 26th 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 lawyers who are in managerial or supervisory positions at their firms. The Rule of Professional Conduct, as revised, is as follows:
Rule 5.1 Responsibilities of Managerial and Supervisory Lawyers
(a) A lawyer who individually or together with other lawyers possesses 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 comply with these rules and the State Bar Act.
(b) A lawyer having direct supervisory authority over another lawyer, whether or not a member or employee of the same law firm, shall make reasonable efforts to ensure that the other lawyer complies with these rules and the State Bar Act.
(c) A lawyer shall be responsible for another lawyer’s violation of these rules and the State Bar Act if:
(1) the lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved; or
(2) the lawyer, individually or together with other lawyers, possesses managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, whether or not a member or employee of the same law firm, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take “reasonable remedial action.
CBA’s previous version of this rule was actually part of the “Discussion” found at the end of Rule 3-110. In fact, this rule, along with Rules 5.2 and 5.3, were summed up in just one sentence in the first paragraph of Rule 3-110’s “Discussion” notes in CBA’s previous version of the RPC: “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.
As set forth above, Rule 5.1 of the CBA’s new RPC has been broken down into three subdivisions, the third of which contains two sub-subdivisions. Subdivision (a) addresses the duty of an attorney with managerial authority in a firm to do his or her best to ensure other attorneys in the firm are following the Rules of Professional Conduct and the State Bar Act. This same requirement applies to an attorney with direct supervisory authority over another attorney – even if that attorney is not a member of the same firm … according to subdivision (b). And subdivision (c) advises that a lawyer will be found liable for another lawyer’s violation of any RPC rules or the State Bar Act IF the lawyer either has ordered the wrong action or has knowledge of the wrong conduct and ratifies it, or – after learning about the wrong action – does not act to avoid or mitigate the situation.
Rule 5.1 of the American Bar Association (ABA)’s RPC, which is titled “Responsibilities of a Partner or Supervisory Lawyer,” refers to lawyers who have managerial authority as partners, but is otherwise very similar in verbiage to the CBA’s RPC Rule 5.1.
Benefit: Generally speaking, the fact that duties of managerial and supervisory attorneys have been spelled out so clearly in this rule provides stronger protection for clients against possible legal malpractice.
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