While most attorneys are generally aware of their personal obligations to comply with the ethical rules, attorneys who work in a law firm setting may have other obligations that arise out of a collaborative practice. Indeed, partners often work closely with associates, who themselves rely on partners for training and supervision. In this relationship, it can be difficult to determine how to respond if one attorney observes another acting contrary to the rules of professional conduct.

The Obligation to Supervise Subordinates

With the increasing pressure to reduce the costs of legal services, partners may try to utilize associates as much as possible to stay within strict budgets. Engaging more junior attorneys and staff members can be a good solution, not only because it is an effective way to manage expense, but also because it can serve as a valuable training tool. However, partners who neglect to properly supervise associates do so at their own risk as, in many jurisdictions, the ethical rules set forth explicit requirements for attorneys in a supervisory role.

In particular, Rule 5.1 of the Model Rules of Professional Conduct provides that “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.” Model Rule 5.1 further sets forth circumstances upon which one lawyer will be “responsible” for another lawyer's ethical violations.

The California Rules of Professional Conduct do not contain an exact equivalent to Model Rule 5.1, but they nonetheless impose a similar duty. Rule 3-110, which addresses an attorney's duty to act competently, makes clear in the Discussion to the Rule that “the duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and nonattorney employees or agents.”

These rules do not suggest, however, that a partner is required to personally make all decisions or to micromanage an associate. Instead, the supervising attorney may simply choose to be kept abreast of important developments and to weigh in on key strategy decisions relating to the representation. In addition, it is helpful for partners to clearly convey their expectations to associates and to set a precedent of compliance with ethical obligations.

The Obligations of Junior Attorneys

While partners may have a duty to supervise subordinates, junior attorneys generally remain responsible for their own conduct. Indeed, Rule 3-110(c) requires that attorneys perform legal services competently and may, under certain circumstances, require that inexperienced attorneys consult with partners or take other steps where they lack sufficient learning and skill to perform a legal service.

Moreover, Rule 5.2 of the Model Rules of Professional Conduct specifies that “a lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” An associate thus typically cannot deflect the blame where the partner explicitly directs the associate to take unethical actions and the associate knowingly takes those actions.

Associates can also find themselves in an ethical quandary when they observe other attorneys failing to comply with their ethical obligations. For example, in situations in which a junior attorney becomes concerned about possible errors or omissions by a more senior attorney, the junior attorney may have disclosure obligations created by the Rules of Professional Conduct or even under their malpractice insurance policy.

Indeed, insurers typically require that law firms disclose all claims or potential claims when applying for or renewing insurance coverage. Depending on the language in the policy or in the application, law firms may forfeit coverage if they fail to disclose a claim or potential claim known by any attorney at the firm, including associates. This can be true even if the error was made by another attorney and is completely unrelated to any work performed by the associate.

This complicated issue most often arises in the context of an associate who is aware of a partner's malfeasance, but is unaware whether the partner has disclosed the issue to the firm or the insurance carrier. In those circumstances, an associate who fails to disclose to the insurance carrier that she or he is aware of facts or circumstances that might give rise to a claim could be without insurance coverage if they are ever sued in connection with the error, even when the error is one committed by their supervising partner and not the associate.

To avoid this situation and to encourage attorneys to disclose potential claims, it is helpful for law firms to establish a procedure so that attorneys know whom to notify of such events and so that they can do so without fear of retribution. Law firms have the ability to create a culture that supports disclosure and encourages their attorneys to disclose material developments, which helps unify a firm's purpose and defenses. Attorneys attempting to handle potential errors on their own can pose significant risk to their employment and coverage, as well as the firm's ability to help them.

Just as important as disclosing these issues is identifying to whom disclosure should be made.  In some areas, there is a risk that disclosures to anyone other than the firm's counsel could risk a waiver of privilege. Therefore, it is important in disclosing material facts to confirm the proper individual at the law firm to whom disclosure should be made.

Despite the ethical obligations and the potentially serious ramifications of a failure to disclose, it can be difficult for associates to overcome the feeling that they are “tattling” on the partner.  But associates who fail to appreciate their obligations increase the risks not only to the law firm but also to themselves.

Shari L. Klevens is a partner at Dentons and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014). Alanna Clair is a partner at the firm and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”