RULE 4-5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
(a) Duties Concerning Adherence to Rules of Professional Conduct. A member of the bar who is a partner, proprietor, shareholder, member of a limited liability company, officer, director, or manager in an authorized business entity, as defined elsewhere in these rules, or who has supervisory authority over another lawyer in the law department of an enterprise or government agency, shall make reasonable efforts to ensure that the authorized business entity, enterprise, or government agency has in effect measures giving reasonable assurance that all lawyers therein conform to the Rules of Professional Conduct.
(b) Supervisory Lawyer's Duties. Any lawyer in an authorized business entity, enterprise, or government agency having supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) Responsibility for Rules Violations. A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct involved; or
(2) the lawyer is a partner, proprietor, shareholder, member of a limited liability company, officer, director, partner, or manager in an authorized business entity, as defined elsewhere in these rules, or has supervisory authority over another lawyer in the law department of an enterprise or government agency, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Comment
Subdivisions (a) and (b) refer to lawyers who have supervisory authority over the professional work of a firm or legal department of a government agency. This includes members of a partnership, proprietors, shareholders, members of a limited liability company, as well as lawyers having supervisory authority in the law department of an enterprise or government agency, and lawyers who have intermediate managerial responsibilities in an authorized business entity.
The measures required to fulfill the responsibility prescribed in subdivisions (a) and (b) can depend on the firm's structure and the nature of its practice. In a small firm, informal supervision and occasional admonition ordinarily might be sufficient. In a large firm, 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 supervising lawyer or special committee. See rule 4-5.2. 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 a lawyer having authority over the work of another may not assume that the subordinate lawyer will inevitably conform to the rules.
Subdivision (c)(1) expresses a general principle of responsibility for acts of another. See also rule 4-8.4(a).
Subdivision (c)(2) defines the duty of a lawyer having direct
supervisory authority over performance of specific legal work by another lawyer. Whether a
lawyer has such supervisory authority in particular circumstances is a question of fact.
Partners, proprietors, shareholders, members of a limited liability company, officers,
directors, and managers have at least indirect responsibility for all work being done by
the firm, while a partner, shareholder, member of a limited liability company, officer,
director, and manager in charge of a particular matter ordinarily has authority over other
firm lawyers engaged in the matter. Appropriate remedial action would depend on the
immediacy of the partner's, shareholder's, member's (of a limited liability company),
officer's, director's, or manager'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. 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.
Professional misconduct by a lawyer under supervision could reveal a violation of subdivision (b) on the part of the supervisory lawyer even though it does not entail a violation of subdivision (c) because there was no direction, ratification, or knowledge of the violation.
Apart from this rule and rule 4-8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, shareholder, member of a limited liability company, officer, director, manager, 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.