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CHAPTER 5
LAW FIRMS, LEGAL DEPARTMENTS, AND LEGAL
SERVICE ORGANIZATIONS
PROPOSED RULE 5.1
RESPONSIBILITIES OF A PARTNER, MANAGING LAWYER OR SUPERVISORY
LAWYER
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 in the firm conform to the Rules
of Professional Conduct.
to ensure that the other lawyer conforms to the Rules of Professional Conduct.
Conduct if:
involved; or
which the other lawyer practices, has direct supervisory authority over the
lawyer, is serving as co-counsel with the other lawyer in the matter, or is sharing
fees from the matter with the other lawyer; and
mitigated but fails to take reasonable remedial action.
[1]Paragraph (a) applies to lawyers who have managerial authority over the professional
work of a law firm. See Rule 1.0(d) (defining law firm to include not only a private law firm, but
also a legal department of a corporation, government agency, or other organization and a legal
services organization). Each partner in a law partnership, or their counterparts in firms organized as
professional corporations, professional limited liability companies, or professional limited liability
partnerships will be deemed to possess managerial authority for all aspects of the firm’s practice.
A law firm or other organization of lawyers described in this Rule may, however, agree that the
managerial authority for the conduct of the firm or organization will be centralized in some but not
all of the partners or managing lawyers. In such a case, only the partners or managing lawyers
possessing such managerial authority will be subject to the duty imposed by paragraph (a). On the
other hand, however, paragraph (a) may be applicable when a lawyer in a firm or other organization
of lawyers described in this Rule, whether or not a partner or a managing lawyer, is assigned
intermediate-level managerial responsibilities for a department or an office within the firm. Because
many lawyers do not practice in traditional law firms, but rather practice law in legal departments of
business firms, legal services organizations, or in legal departments of governmental agencies, this
rule also applies to lawyers possessing managerial authority in such organizations.
[2] The measures required to fulfill the responsibility prescribed in paragraph (a) can
depend on the organization’s structure and the nature of its practice. In a small law firm or legal
department, for example, informal supervision and occasional admonition ordinarily might be
sufficient. In large firms or legal departments, however, or in practice situations in which intensely
difficult ethical problems frequently arise, more elaborate procedures may be necessary. Some
firms, for example, have a procedure whereby junior lawyers can make confidential referral of
ethical problems directly to a designated senior partner or special committee. See Rule 5.2. Firms
and legal departments, 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 a lawyer having authority over the work of another may not assume
that the subordinate lawyer will inevitably conform to the Rules.
[3] Paragraph (b) applies to lawyers, without regard to their status in a firm or other
organization of lawyers described in this Rule, who assume direct supervisory responsibility for the
oversight of the work of another lawyer.
[4] Paragraph (c)(1) expresses a general principle of responsibility for acts of another. See
also Rule 8.4(a).
[5] Paragraph (c)(2) specifies the circumstances in which one lawyer will be held
accountable for the professional misconduct of another lawyer because he or she knows the other
lawyer has engaged in professional misconduct and fails to take reasonable action to prevent or
mitigate the harm caused by the professional misconduct. Whether a lawyer has such supervisory
authority in particular circumstances is a question of fact. Partners of a private firm have at least
indirect responsibility for all work being done by the firm, while a partner in charge of a particular
matter ordinarily has direct authority over other firm lawyers engaged in the matter. Appropriate
remedial action by a partner would depend on the immediacy of the partner's involvement and the
seriousness of the misconduct. The supervisor is required to intervene to prevent avoidable
consequences of misconduct if the supervisor knows that the misconduct occurred. If, for example,
a partner in a law firm knows that another lawyer in the firm misrepresented a matter to an opposing
party in a negotiation, the partner as well as the subordinate has a duty to correct the resulting
misapprehension. Such would also be the case if a lawyer who was associated with another lawyer
as a direct supervisor, co-counsel, or as a party to a fee-sharing agreement learned that the other
lawyer had engaged in misconduct in connection with the representation. This duty is in addition to
the lawyer’s Rule 8.3(a) duty to report professional misconduct to the Office of Disciplinary
Counsel. The obligation to take reasonable remedial action, however, does not require the lawyer to
take any action which would violate these rules, e.g., disclosing information related to the
representation of a client in violation of Rule 1.6. Nor does the duty to mitigate harm require the
lawyer to compensate a person for losses suffered by virtue of the misconduct the lawyer knows
has occurred.
[6] Professional misconduct by a lawyer in a firm or other organization of lawyers
described in this Rule, or a lawyer who is working under the direct supervision of another lawyer
could reveal a violation of paragraph (a) or (b) on the part of the partner or the supervisory lawyer
even though it does not entail a violation of paragraph (c) by the partner, the managing lawyer, or
supervisory lawyer 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 partner, associate or another lawyer with whom the lawyer is associated in connection
with the representation of a client. Whether a lawyer may be held civilly or criminally liable for
another lawyer's conduct is a question of law beyond the scope of these Rules. This Rule is only
and responsibilities of partners, supervisory lawyers, co-counsel, or parties to fee-sharing
agreements with respect to the conduct of other lawyers with whom they are associated.
See Rule 1.0(d)
“Knows”See Rule 1.0(f)
“Partner”See Rule 1.0(h)
“Reasonable”See Rule 1.0(i)
The Proposed Rule embraces the basic substance of ABA Model Rule 5.1, but has been
modified as follows:
a. Paragraph (a) has been modified to distinguish between partners in law firms
(and their counterparts in PCS, PLLCs, and PLLPs) and lawyers who possess managerial
authority in other law firms, such as legal departments and legal service offices. Both are
subject to the same duty, but it was felt that we were stretching the definition of a partner too
far when we tried to include all lawyers with managerial authority within the definition. We
have also made it clear that lawyers who possess managerial authority with respect to a
portion of the legal activity in a firm must comply with the requirements of paragraph (a).
b. Paragraph (c)(2) has been revised to extend the duty of one lawyer to act
reasonably to prevent or mitigate the consequences of professional misconduct of another
lawyer to lawyers jointly representing a client or who have assumed joint responsibility for a
representation pursuant to a Rule 1.5(e) fee-sharing agreement. The Model Rule only
applies to partners and to lawyers with direct supervisory responsibility for the work of
another lawyer.
Made
1. The Committee has modified Paragraph (a) and Comment [1] to eliminate the specific
references to legal departments and legal service organizations, because the definition of a law firm
in Rule 1.0(d) already includes such organizations. A conforming change was made to Paragraph
(c)(1)(i). While eliminating the redundancy, the Committee also conformed the wording of
Paragraph (a) and (c)(1)(i) to the Ethics 2000 Commission proposal. No change in substance is
intended.
2. In response to a recommendation from the Memphis Bar Association, the Committee has
modified Comment [3] so that it more closely tracks the wording of Paragraph (b).
SUBORDINATE LAWYER
A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted
at the direction of another person.
A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in
accordance with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty.
[1]Although a lawyer is not relieved of responsibility for a violation by the fact that the
lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a
lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a
subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be
guilty of a professional violation unless the subordinate knew of the document's frivolous character.
[2]When lawyers in a supervisor-subordinate relationship encounter a matter involving
professional judgment as to ethical duty, the supervisor may assume responsibility for making the
judgment. Otherwise a consistent course of action or position could not be taken. If the question
can reasonably be answered only one way, the duty of both lawyers is clear and they are equally
responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide
upon the course of action. That authority ordinarily reposes in the subordinate lawyer’s supervisor,
another lawyer who has primary responsibility for the representation, or a lawyer who has authority
to resolve such matters on behalf of the firm, and a subordinate may be guided accordingly. For
example, if a question arises whether the interests of two clients conflict under Rule 1.7, the
supervisor's reasonable resolution of the question should protect the subordinate professionally if
the resolution is subsequently challenged.
See Rule 1.0(i)
The Proposed Rule is identical to the Model Rule, with the exception of the addition of
language in the fifth sentence of Comment [2] noting that the subordinate lawyer may be guided by
the decision of a lawyer other than the subordinate lawyer’s direct supervisor in appropriate
circumstances.
The version of the Rule contained in the Preliminary Draft eliminated the reference to
"subordinate" lawyers based on concern for the tone of the term in referring to supervised lawyers.
however, the Committee conformed its proposal to the language of the Model Rule.
Made