With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, 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 the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer 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 the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 5.3 (2002).

In 2002, the ABA revised the corresponding model rule to clarify that it applies to managing lawyers in corporate and government legal departments and legal services organizations, as well as to partners in private law firms. The ABA intended no change in substance. See ABA Ethics 2000 Commission Revision Notes to Model Rule 5.3 (2002).

Comments to ABA Model Rule 5.3

[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

Annotations

Generally

A lawyer’s obligation to supervise nonlawyer assistants is very similar to a lawyer’s responsibility to supervise subordinate lawyers. First, the lawyer must exercise reasonable care in overseeing the work of nonlawyers. Thus, a partner must ensure that the firm has in place reasonable measures to ensure that nonlawyers conduct themselves in a manner consistent with these rules–although as a technical manner these rules do not apply to nonlawyers. See La. Rules of Professional Conduct Rule 5.3(a) (2004); In re Wahlder, 728 So. 2d 837 (La. 1999) (holding that a lawyer has ultimate responsibility for actions of nonlawyer staff); see also Restatement (Third) of the Law Governing Lawyers § 11(4)(a)(i) (2000). Likewise, a supervisory lawyer must ensure that the conduct of nonlawyers whom he or she supervises conforms to these rules. See La. Rules of Professional Conduct Rule 5.3(b) (2004); see also Restatement (Third) of the Law Governing Lawyers § 11(4)(a)(ii) (2000); In re Shortess, 950 So. 2d 570 (La. 2007) (disciplining lawyer for not adequately supervising a non-lawyer assistant in preparing pleadings); In re Brown, 813 So. 2d 325 (La. 2002) (disciplining lawyer for failure to supervise paralegal who was functioning like a lawyer); In re Wilkinson, 805 So. 2d 142 (La. 2002) (disciplining a lawyer for failure to supervise nonlawyer’s handling of succession matters); see also La. State Bar Ass’n v. Keys, 567 So. 2d 588 (La. 1990); La. State Bar Ass’n v. Edwins, 540 So. 2d 294, 299 (La. 1989). To comply with this rule, a partner or supervisory lawyer should inform all nonlawyer assistants in writing about the fundamental duties owed by lawyers to their clients, particularly the duties of confidentiality, loyalty, competence and diligence. Furthermore, a lawyer should supervise with particular care all staff members entrusted with the handling of client or third-party[*1. In In re Cline, 756 So. 2d 284 (La. 2000), the Louisiana Supreme Court suspended a lawyer for six months for his failure to assure that his (nonlawyer) client properly obtained her prior lawyer's endorsement on settlement checks; see also In re Geiger, 27 So.3d 280 (La. 2010) (disciplining lawyer for not adequately supervising his non-lawyer employee who had access to and may have misappropriated funds from client trust accounts); In re McClanahan (26 So.3d 756 (La. 2010) (disbarring attorney for, among other things, instructing a non-lawyer assistant to cash a check issued from a client's trust account instead of the operating account).*]funds.

Second, a lawyer is subject to discipline if he or she “orders” or knowingly “ratifies” conduct by a nonlawyer that would be unethical if that person were a lawyer. La. Rules of Professional Conduct Rule 5.3(c)(1) (2004); id. Rule 8.4(a); see also Restatement (Third) of the Law Governing Lawyers § 11(4)(b)(i) (2000). Furthermore, a lawyer is subject to discipline if the lawyer learns of such conduct by a nonlawyer after the fact, but then fails to attempt to avoid or mitigate the consequences of that nonlawyer’s conduct. La. Rules of Professional Conduct Rule 5.3(c)(2) (2004); see also Restatement (Third) of the Law Governing Lawyers § 11(4)(b)(ii) (2000).

Vicarious Disqualification for Conflict of Nonlawyer Asistant

A lawyer is potentially subject to disqualification if the lawyer’s paralegal possesses information that would be disqualifying if the paralegal were a lawyer.  The Louisiana Third Circuit held:

because [the respondent's lawyer] is responsible for the conduct of her employees and because her paralegal has a direct conflict of interest in this case, this conflict disqualifies her from representing respondent.

T.S.L. v. G.L., 976 So.2d 793 (La. Ct. App. 3d Cir. 2008).

Using Investigators

A lawyer who knowingly uses an investigator or other third party to engage in conduct that the rules would forbid the lawyer from engaging in faces the risk of discipline. It is not uncommon for a lawyer to hire an investigator to surreptitiously gather evidence. However, the lawyer must not dispatch the investigator to engage in conduct that would otherwise be unethical for a lawyer. This could occur if the lawyer engages an investigator knowing that the investigator will (1) make a false statement of material fact to a third person, or (2) contact a represented person.

The Kentucky Supreme Court publicly reprimanded a lawyer who, while representing a client in a wrongful termination case, used an investigation firm to interview directly the client’s former employer See Bracher v. Kentucky Bar Ass’n, 290 S.W.3d 648 (Ky. 2009). In that case, the Kentucky lawyer hired Documented Reference Check, a company that contacted the client’s former employer to see what the company had to say about the client. The Kentucky Supreme Court found that in so doing, the lawyer violated Kentucky Rule of Professional Conduct 4.2.

Much the same result could occur in Louisiana. Louisiana Rule 4.1(a) prohibits a lawyer from “knowingly” making “a false statement of material fact or law to a third person.” Louisiana Rule 4.2(a) prohibits a lawyer from communicating “about the subject of the representation with . . . a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Louisiana Rule 8.4(a) prohibits a lawyer from violating or attempt to violate the rules . . . through the acts of another.” See also Louisiana Rule 5.3.

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving violations of Rule 5.3: disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed to the profession, and causes little or no actual or potential injury to a client, the public or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1992).

Notes

^*This page was updated on August 7, 2010.

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