Beginning November 1, 2018, every California attorney will be required to conduct themselves in accordance with 69 new rules of professional conduct, replacing the 46 rules we currently must follow.
Lawyers and law firms have only a few months to ensure compliance. Not only have the rules been renumbered and reorganized to align with the ABA Model Rules, but the rules themselves contain several significant modifications that will impact your daily practice. Leading up to this transition, the Legal Ethics Corner will focus on selected new rules and highlight noteworthy changes to your ethical obligations.
Before diving in too deep, it is essential to understand what exactly each California lawyer is responsible for and why it is imperative to independently review all of the new rules.
However, three new rules hold a lawyer vicariously responsible for the conduct of others as well.
A lawyer’s duty to supervise the work of a subordinate attorney and non-attorney employees or agents is only currently included in a comment to Rule 3-310. Now, in-step with the Model Rules, not only have these duties garnered placement as separate Rules 5.1 and 5.3, but subordinate attorneys now have a similar duty under Rule 5.2.
New Rule 5.1 requires managerial and supervisory lawyers to make reasonable efforts to assure compliance by other lawyers. A lawyer will be vicariously responsible for another lawyer’s violation if “(1) the lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved; or (2) the lawyer, individually or together with other lawyers, possesses managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, whether or not a member or employee of the same law firm, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
Under new Rule 5.2(a), a subordinate lawyer has an independent duty to comply with the rules and cannot simply follow the instruction of his or her superior. Although subsection (b) states that a subordinate lawyer is not in violation if s/he acts in accordance with a supervisory lawyer’s “reasonable resolution of an arguable question of professional duty[,]” the comment to 5.2 cautions that“[i]f the subordinate lawyer believes that the supervisor’s proposed resolution of the question of professional duty would result in a violation of these rules or the State Bar Act, the subordinate is obligated to communicate his or her professional judgment regarding the matter to the supervisory lawyer.”
The moral of this story is that you cannot blindly depend on your firm, managing attorney(s) or supervising lawyer(s) to comply with these new rules. Every California lawyer is personally responsible.
Visit the State Bar website for the new rules and links to other resources. http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct
About the author:
Kendra L. Basner is a partner in the San Francisco office of Hinshaw & Culbertson. Her practice focuses on the representation of lawyers, including professional liability and disciplinary defense, as well as risk management and legal ethics counseling. She is the Chair of BASF’s Legal Ethics Committee and a member of the CA State Bar’s Committee on Professional Responsibility and Conduct (COPRAC).