Ethics in Brief: Ethically (and Effectively) Supervising Others

By Katie Parker

Associate Professor, USD School of Law

“Management is doing things right; leadership is doing the right things.”

• Peter F. Drucker, Austrian-American management scholar and educator

For most attorneys, becoming a supervisor is inevitable – one of the many “they didn’t teach me this in law school” aspects of the job. When I first became a supervisor, it didn’t feel natural to me, so I was very focused on learning strategies for being a “good” or “effective” supervisor. But beyond learning management skills, attorneys must also be mindful of the ethical aspects of supervision. California’s Rules of Professional Conduct incorporate these obligations, and they don’t apply just to law firm partners. They apply to any lawyer with supervisory authority over another lawyer or assistant, regardless of titles. 

In many ways, being an ethical supervisor goes hand-in-hand with being an effective supervisor. Broadening your focus beyond your own personal practice, and prioritizing the well-being, professional obligations, and success of your subordinates are key to effective leadership. When you think and act like a leader, you promote an ethical work culture, and one where professionals thrive and succeed.

The Rules

Courts previously recognized the duty to ethically supervise others as a component of former Rule 3-110’s general duty of competence. The 2018 revisions to the Rules of Professional Conduct made supervisors’ obligations explicit, and arguably broader. Indeed, the Executive Summary issued with proposed new Rules 5.1 and 5.3 stated that these new rules “extend beyond the duty to supervise that is implicit in current rule 3-110 and include a duty on firm managers to have procedures and practices that foster ethical conduct within a law firm.” See https://www.calbar.ca.gov/Portals/0/documents/rules/Rule_5.1-Exec_Summary-Redline.pdf

Under the current rules, any lawyer with managerial responsibility in a firm must make “reasonable efforts” to “ensure that the firm has in effect measures giving reasonable assurances that all lawyers in the firm comply with” the Rules and the State Bar Act.  Rule 5.1(a). Beyond these obligations of firm managers, any lawyer with “direct supervisory authority over another lawyer” must also take “reasonable efforts to ensure that the other lawyer complies with” the Rules and the State Bar Act. Rule 5.1(b). Given the clear language expanding supervisory authority beyond law firm partners, all attorneys, regardless of title, should meaningfully analyze whether they are supervising others, as this is a question of fact dependent on the circumstances. Rule 5.1, Comment 5. 

The law is clear that there is no vicarious liability for a subordinate attorney’s ethical missteps. Rule 5.1, Comment 8. However, the Rules do impose direct liability on a managerial or supervisory attorney for a subordinate’s unethical conduct in two scenarios. The first is where “the lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved.” Rule 5.1 (c)(1). The second is where “the lawyer … knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.” Rule 5.1(c)(2). 

The Rules also address supervision of nonlawyers, requiring a managerial or supervisory attorney to make reasonable efforts to ensure that a nonlawyer’s conduct “is compatible with the professional obligations of the lawyer.” Rule 5.3(a) and (b). Rule 5.3 similarly imposes direct liability where a managerial or supervisory lawyer orders or ratifies unethical conduct, or fails to remediate such conduct. Rule 5.3(c)(1) and (2).  The drafters noted that a lawyer must give assistants “appropriate instruction and training regarding all ethical aspects of their employment,” taking account of the fact that assistants “might not have legal training.” Rule 5.3, Comment.

Concrete Steps to Ethically Manage Others

The Rules, the Comments to the Rules, and authority from California and other jurisdictions are replete with guidance and examples of missteps to avoid. Here are a few strategies that contribute to being a more ethical and effective supervisor:

• Develop policies and procedures designed to avoid conflicts of interest, calendar and meet deadlines, and properly handle client funds. Rule 5.1, Comment 1. Don’t just write policies and forget about them. Implement them, and periodically evaluate whether they are working. E.g. In re Beauregard, 189 A.3d 1236 (Del. 2018) (managing partner disciplined where he did not “implement reasonable safeguards to ensure that the firm is meeting its obligations with respect to books and records”). 
• Learn the strengths, weaknesses, and experience levels of subordinate employees, and tailor assignments and supervision accordingly. Don’t assign work to an attorney who doesn’t have the experience to handle it. See Gadda v. State Bar, 50 Cal. 3d 344, 354 (1990) (affirming discipline for supervising attorney despite subordinate attorney’s exoneration by the state bar: “petitioner violated this duty of supervision by not taking responsibility for [associate’s] actions and by assigning him to conduct a hearing he was unqualified to handle without supervision”).
• Devote time and planning to developing training programs for both attorneys and staff. See Trousil v. State Bar, 38 Cal. 3d 337, 342 (1985) (attorney could not avoid discipline for secretary’s error in mailing settlement check, because he could not “show that he satisfactorily supervised his office staff.”).
• Ensure that caseloads are not so excessive as to be inconsistent with ethical lawyering. ABA Formal Opinion 06-441 (2006).
• Maintain regular, meaningful communication with supervised employees. Checking in with your employees is different from micromanaging them, and when you are having regular conversations (preferably in person), you’re more likely to spot issues before they escalate. Lack of in-person interaction can exacerbate supervision shortcomings. See Atty. Griev. Comm’n of Md. v. Kimmel, 405 Md. 647 (2008) (affirming discipline for attorneys who “essentially relied on an isolated, inexperienced attorney to supervise herself,” and noting that “physical isolation of an attorney from peers and supervisors also indicates a heightened need to adapt strategies to ensure compliance with the Rules.”).
• Monitor associate and staff performance, and when you become aware of potential problems, increase your own involvement. See In re Hindin, 1997 Calif. Op. LEXIS 192, *81, 3 Cal. State Bar Ct. Rptr. 657 (1997) (respondents’ involvement in a lengthy trial was insufficient to excuse significant and numerous missed deadlines by associates and staff, among other failures). 

Above all else, set an example for ethical lawyering in everything you do. Establish a culture in your office and on case teams where everyone feels comfortable seeking guidance, and where ethical behavior is the norm. In doing so, you become not just a manager, but a leader.