Following is the 28th 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 assistants in a law firm who are not licensed attorneys. The Rule of Professional Conduct, as revised, is as follows:
Rule 5.3 Responsibilities of Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(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 the nonlawyer’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer, whether or not an employee of the same law firm, shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of these rules or the State Bar Act if engaged in by a lawyer 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 person is employed, or has direct supervisory authority over the person, whether or not an 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.
As with Rules 5.1 and 5.2 in the CBA’s new version of the RPC, Rule 5.3 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.
Subdivision (a) of Rule 5.3 of the CBA’s new RPC, as set forth above, says that any lawyer with managerial authority in a firm must have in place a method of ensuring that the conduct of any non-lawyer assistant or other personnel in that lawyer’s office is compatible with the lawyer’s professional obligations. Subdivision (b) says a lawyer with direct supervisory authority over a non-lawyer employee must make reasonable efforts to ensure the person’s conduct is compatible with those obligations. And subdivision (c) warns that a lawyer will be held responsible for the non-lawyer’s conduct if the lawyer was aware of the wrong conduct but did nothing to prevent or mitigate the conduct OR if they approved of (or actually ordered) the conduct.
The wording found in Rule 5.3 of the American Bar Association (ABA)’s RPC is almost exactly the same as the wording in the CBA’s Rule 5.3.
Benefit: Generally speaking, a client’s interests will be better served if the attorney representing them is diligent in his or her oversight of any non-lawyers who may be assisting with or having access to information related to the client’s matter.
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