(a) A partner in a law firm, 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 all lawyers in the firm conform to the Rules of Professional Conduct. 

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with 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 other lawyer practices, or has direct supervisory authority over the other lawyer, 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 5.1 (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 5.1 (2002).

Comments to ABA Model Rule 5.1

[1] Paragraph (a) applies to lawyers who have managerial authority over the professional work of a firm. See Rule 1.0(c). This includes members of a partnership, the shareholders in a law firm organized as a professional corporation, and members of other associations authorized to practice law; lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities in a firm. Paragraph (b) applies to lawyers who have supervisory authority over the work of other lawyers in a firm.

[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.

[3] Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) can depend on the firm’s structure and the nature of its practice. In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures 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, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the Rules.

[4] Paragraph (c) expresses a general principle of personal responsibility for acts of another. See also Rule 8.4(a).

[5] Paragraph (c)(2) defines the duty of a partner or other lawyer having comparable managerial authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial action by a partner or managing lawyer would depend on the immediacy of that lawyer’s involvement and the seriousness of the misconduct. A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.

[6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) 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 subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer’s conduct is a question of law beyond the scope of these Rules.

[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).

Annotations

Ensuring Compliance With the Rules of Professional Conduct

Paragraph (a) provides that a partner in a law firm must make reasonable efforts to ensure that other lawyers in the firm conform their conduct to the Louisiana Rules of Professional Conduct. La. Rules of Professional Conduct Rule 5.1(a) (2004); see In re Trahant, 108 So. 3d 67, 75 (La. 2012) (disciplining lawyer for relinquishing legal responsibilities to employees resulting in fraudulent real estate transactions); In re Tolchinsky, 740 So. 2d 109 (La. 1999) (disbarring lawyer for failure to supervise subordinate lawyer and for subsequent failure to report that lawyer’s egregious ethical violations); see also Restatement (Third) of the Law Governing Lawyers § 11(1) (2000). Similarly, paragraph (b) provides that a lawyer with “direct supervisory” authority over another lawyer must undertake such efforts. La. Rules of Prof’l Conduct Rule 5.1(b) (2004); see, e.g., In re Comish, 889 So. 2d 236 (La. 2004) (disciplining lawyer for failure to supervise disbarred lawyer he hired as his legal assistant); In re Wilkinson, 805 So. 2d 142, 146-47 (La. 2002) (disciplining lawyer for failure to supervise new admittee’s handling of succession matter). This paragraph requires lawyers who are not “partners,” for example senior associates, to ensure that the lawyers whom they supervise comply with the rules. See La. Rules of Prof’l Conduct Rule 5.1(b) (2004); see also Restatement (Third) of the Law Governing Lawyers § 11(2) (2000).

What measures are “reasonable” under the circumstances turns on a number of factors, including, the size of the firm, the firm’s management structure, and the nature of the firm’s practice. See Model Rules of Prof’l Conduct Rule 5.1 cmt. 3 (2002). To comply with this rule, a partner or supervisory lawyer should consider establishing a committee to address and to resolve “ethical” issues. Moreover, the firm should implement policies to ensure that all of its lawyers: (1) have successfully completed a legal-ethics class in law school; (2) comply with mandatory continuing legal education requirements; (3) present complex ethics issues to firm management for resolution; (4) have knowledge of the availability of extra-firm resources, including the LSBA Ethics Advisory Service Committee, for issues relating to legal ethics; (5) have access to an adequate library of ethics-related materials; and, (6) are handling all matters competently and diligently, and are not perilously overburdened with work.

Supervisory Responsibility

Paragraph (c) sets forth the standards for holding a supervisory lawyer responsible for another lawyer’s violation of the rules of conduct. See In re Jones, 894 So. 2d 338 (La. 2005) (noting lawyer’s Rule 5.1(c) violation due to lawyer’s partner’s noncompliance with Rule 1.8(a)); Under these standards, no lawyer is “vicariously” responsible for another’s unethical conduct–at least for purposes of professional discipline. Rather, a lawyer is subject to discipline only for the lawyer’s own culpable conduct in dealing with or supervising a lawyer who violates the rules.

However, a lawyer may be vicariously liable for the harms caused by a partner under other law. See Restatement (Third) of the Law Governing Lawyers § 58 (2000) (addressing vicarious civil liability of partners and principals of law firms). For example, a lawyer is responsible for another lawyer’s violation if the lawyer “orders” or “ratifies” the unethical conduct of another lawyer. La. Rules of Prof’l Conduct R. 5.1(c)(1) (2004); see also id. Rule 8.4(a) (providing that it constitutes “professional misconduct for a lawyer to violate this Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another”); Restatement (Third) of the Law Governing Lawyers § 11(3)(a) (2000). This paragraph imposes responsibility irrespective of whether there is a supervisor-subordinate relationship between the lawyers. In addition, a lawyer is responsible for a subordinate lawyer’s violation if the lawyer learns that the subordinate lawyer has violated the rules of professional conduct, but then does nothing to avoid or mitigate the consequences of that unethical conduct. La. Rules of Prof’l Conduct Rule 5.1(c)(2) (2004); see also Restatement (Third) of the Law Governing Lawyers § 11(3)(b) (2000).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving violations of Rule 5.1: 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); See In re McBride, 167 So. 3d 619 (La. 2015) (court imposed public reprimand for failure to make reasonable efforts to ensure that other lawyers in his law firm conformed their conduct to the Rules of Professional Conduct, in violation of Rule 5.1(a) of the Rules of Professional Conduct).

Notes

This page was updated on January 18, 2017.

2 thoughts on “Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers

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