A lawyer may be subject to an ethics investigation and disciplinary action based on the conduct of nonlawyers employed or outsourced by the lawyer. When your paralegal or other nonlawyer assistant engages in wrongful conduct, such as breach of client confidentiality and unauthorized practice of law, you may be held responsible under Rule 5.3 of the Minnesota Rules of Professional Conduct (MRPC).
What Are a Lawyer’s Responsibilities Regarding Nonlawyer Assistants?
Minnesota’s Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, mirrors the ABA Model Rule. MRPC 5.3 requires you to make efforts to ensure the nonlawyer’s conduct is compatible with the professional ethics rules that apply to lawyers.
With respect to a nonlawyer employed or retained by or associated with a lawyer, Rule 5.3 applies to the following lawyers:
Partner. Rule 5.3(a), MRPC, states that a partner “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”
Rule 5.3 (c)(2), MRPC, further states that a partner is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when the partner “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
Rule 1.0(h), Terminology, defines a partner as “a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.”
Lawyer, who individually or together with other lawyers, has managerial authority. MRPC 5.3(a) and (c)(2) also apply to lawyers with “comparable managerial authority [to partners] in a law firm.” These are lawyers who, similar to partners, manage and control the firm.
Lawyer with direct supervisory authority over the nonlawyer. MPRC 5.3(b) states, “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.” These are lawyers, such as senior associates, who are not necessarily partners or managers, but still have “direct supervisory authority” over the nonlawyer.
Lawyer who orders or ratifies the nonlawyer’s misconduct. MPRC 5.3(c)(1) states that a lawyer is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when “the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”
When Does a Lawyer Breach Responsibilities Regarding Nonlawyer Assistants?
Delegating work to non-lawyers, such as law student interns, secretaries, investigators, and paraprofessionals is common and expected in law firms. It is difficult for lawyers to run their firms, serve clients, respond to prospects, market their practice, and collect fees without assistance from non-lawyers.
But responsibilities related to nonlawyer assistants may be found to be breached in the following situations:
Partner or Lawyer With Comparable Managerial Authority fails to take reasonable measures to ensure the firm reasonably discourages misconduct. MRPC 5.3(a).
Under Rule 5.3(a), partners and managing lawyers who fail to implement reasonable policies, procedures and practices to deter nonlawyers from engaging in misconduct may be investigated and disciplined when such misconduct occurs.
MRPC 1.0 (i), Terminology, defines “reasonable” or “reasonably” as “conduct of a reasonably prudent and competent lawyer.” Partners and managing lawyers who do not act reasonably under the circumstances, with respect to preventing misconduct by nonlawyers, may be subject to discipline.
Partners and managing lawyers who fail to establish checks and balances, instill and promote a firm culture, and provide training that encourage compliance with a lawyer’s ethical duties open themselves up to disciplinary action when nonlawyers engage in wrongful conduct.
They may be investigated, for example, when there are no policies and practices that prohibit nonlawyers from divulging confidential information obtained during the attorney-client relationship, working on matters in which they have a conflict of interest, providing legal advice on a client matter, and signing pleadings on behalf of a lawyer.
Partner, Lawyer With Comparable Managerial Authority, or Supervising Lawyer fails to take reasonable remedial measures when they learn about the misconduct at a time when the consequences can be avoided or mitigated. MRPC 5.3 (c)(2).
Rule 5.3(c)(2) subjects partners and managing lawyers to investigation and discipline if they fail to take reasonable steps to correct a nonlawyer’s misconduct when they know of it at a time when the impact can be warded off or reduced.
MRPC 1.0(g), Terminology, defines “knows” as “actual knowledge of the fact in question. ” MRPC 5.3(c) applies only when the nonlawyer engages in misconduct and the lawyer is actually aware of it or should have been aware of it. The lawyer is not liable if he did not consciously avoid knowledge of the nonlawyer’s misconduct or if the nonnlawyer concealed the misconduct.
But MRPC 1.0(g) further states, “A person’s knowledge may be inferred from circumstances.” A lawyer with constructive knowledge – i.e. he should have known if he had take reasonable care – is just as liable as one with actual knowledge.
Partners and managing lawyers who fail to intervene and stop the nonlawyer’s misconduct, when they become aware of it at a time when the consequences can be avoided or mitigated, do so at their own peril.
For instance, a partner or managing lawyer who failed to adequately screen nonlawyers from working on a particular client matter and, after learning about a conflict of interest, does not take any corrective measures, such as getting the client’s consent or pulling the paralegal from the case assignment, may be disciplined.
Supervising Lawyer fails to make reasonable efforts to prevent misconduct. MRPC 5.3(b).
Rule 5.3(b) subjects supervising lawyers to investigation and discipline when they fail to make reasonable efforts to ensure the nonlawyer’s conduct is compatible with the lawyer’s professional duties.
Lawyers with “direct supervisory authority” who fail to adequately supervise the nonlawyer who engages in misconduct are vulnerable to disciplinary action. Failure to carry out proper delegation, offer adequate training, do necessary follow-ups and provide adequate supervision to ensure obligations are met, through nonlawyers, is a dereliction of duties.
Mere reliance on the existence of office policies, procedures and practices is not sufficient to comply with Rule 5.3(b). Neglecting to provide ongoing training, monitoring and review may amount to breach of this rule.
Lawyer orders or condones the misconduct. MRPC 5.3(c)(1).
A lawyer who directs a nonlawyer’s misconduct, or ratifies the misconduct after becoming aware of it, is answerable to discipline under Rule 5.3 (c)(1).
A lawyer who orders the misconduct or approves of it cannot hide behind reasonable preventive measures that have been implemented at the law firm.
Any lawyer who directs a nonlawyer to engage in acts that would be considered a violation of the lawyer’s professional duties not only violates Rule 5.3(c)(1), but may also be found liable under Rule 8.4(a), which states “It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”
Examples of a Rule 5.3(c)(1) violation include instructing a notary public at the firm to notarize a client’s affidavit when the client did not appear before the notary public; allowing secretaries to sign pleadings on behalf of the lawyer; and encouraging paralegals to make legal recommendations to the client. Saving time or trying to meet deadlines or client demands is no excuse for violating this rule.
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Rule 5.3 relates to nonlawyers within the firm, including secretaries, investigators, law student interns, and paraprofessionals – whether employees or independent contractors – acting for the lawyer in rendition of legal services. See MRPC 5.3, Comment 2. It also relates to nonlawyers outside the firm assisting the lawyer in providing legal services, such as an investigative or paraprofessional service, a document management company to create and maintain a database for complex litigation, a third party that prints and scans client documents, and an Internet-based service to store client information. See MRPC 5.3, Comment 3.
Partners and managing lawyers must make reasonable efforts to ensure the firm has implemented measures to keep nonlawyers’ conduct compatible with the lawyer’s professional obligations. They, along with supervising lawyers, must take appropriate remedial action when they know (or should know) about a nonlawyer’s misconduct. Supervising lawyers also need to provide adequate oversight to prevent misconduct. All lawyers must avoid ordering, or ratifying with knowledge, any nonlawyer’s conduct that is not consistent with the lawyer’s professional obligations.
Be sure to read our related article, What Should a Lawyer Do to Meet Professional Responsibilities Regarding Nonlawyer Assistants?
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This article provides general information only. Do not consider it as legal advice for any individual case or situation.
The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance.
Photo by: StefSince1985
