Rule 5.3. Responsibilities Regarding Nonlawyer Assistants

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), except the title of the rule. In 2012, the ABA changed the title of the model rule to “Responsibilities Regarding Nonlawyer Assistance” from “Responsibilities Regarding Nonlawyer Assistants.”

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] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the professional obligations of the lawyer. See Comment [6] to Rule 1.1 (retaining lawyers outside the firm) and Comment [1] to Rule 5.1 (responsibilities with respect to lawyers within a firm). Paragraph (b) applies to lawyers who have supervisory authority over such nonlawyers within or outside the firm. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such nonlawyers within or outside the firm that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

Nonlawyers Within the Firm

[2] 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.

Nonlawyers Outside the Firm

[3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

[4] Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

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 Prof’l Conduct R. 5.3(a) (2004); In re Bailey, 115 So. 3d 458, 465 (La. 2013) (disbarring lawyer for failure to ensure lawyer’s nonlawyer wife, who lawyer appointed as trustee of client’s trust, followed proper accounting and adequate preservation of client’s trust among other violations stemming from appointment of wife as trustee). 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 Prof’l Conduct R. 5.3(b) (2004); see also Restatement (Third) of the Law Governing Lawyers § 11(4)(a)(ii) (2000); In re Serret, 35 So. 3d 256, 259 (La. 2011) (disciplining lawyer for failure to recognize and prevent secretary’s embezzelement); 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] 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 Prof’l Conduct R. 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 Prof’l Conduct R. 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 La. Rules of Prof’l Conduct R. 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 5, 2013.

 

 



[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 lawyer 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).

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