Wisconsin Lawyer
Vol. 85, No. 3, March 2012

Question

I have responsibility for supervising other lawyers in my firm. What ethical obligations does that place on me?

Answer

A lawyer who has responsibility for supervising other lawyers has certain ethical responsibilities. These responsibilities may arise because the lawyer in a sole proprietorship or small firm has hired an associate or because the lawyer is a member of the management committee of a larger firm. The Wisconsin Rules of Professional Conduct do not provide a specific definition of what it means to “supervise” another lawyer but a recent decision from the Maine Supreme Judicial Court (discussed below) offers some clarification.

SCR 20:5.1, “Responsibilities of Partners, Managers and Supervisory Lawyers,” identifies the basic requirements under the Rules of Professional Conduct. SCR 20:5.1(a) provides the following:

“(a) A partner in a law firm and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.”

This language identifies the general responsibility that a supervising lawyer has, but offers little guidance other than to provide that “reasonable efforts” must be taken to ensure that “measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct” are in place. It is not clear what types of reasonable measures should be in place, although the ABA Comment suggests that policies and procedures should “include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.”

SCR 20:5.1(b) also 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.” This provision places direct responsibility on a supervising lawyer to ensure that any lawyer working under his or her supervision is acting fully in compliance with the Rules of Professional Conduct.

In Board of Overseers of the Bar v. Warren, 2011 ME 124, the Maine Supreme Judicial Court addressed the responsibilities of a firm’s management committee in a situation in which one of the firm’s lawyers misappropriated funds from a client. The court found that the lawyers on the firm’s executive committee acted appropriately despite not immediately reporting the misconduct of the lawyer involved because they relied on the assurances provided by the lawyer that the funds involved were actually law firm funds and not client funds. When the committee later learned how many times inappropriate fund transfers occurred and that the funds were actually client funds, the committee members fired the lawyer and reported the misconduct to the disciplinary authorities. The court did find that the committee members violated the equivalent of Wisconsin’s SCR 20:5.1(b) by not considering their obligation to report the conduct of the attorney to disciplinary authorities when they first became aware of the inappropriate conduct. In considering this requirement, the court addressed its view of the types of efforts a supervising lawyer should exercise when engaging in that supervision:

“Rule 3.13(a)(1) requires law firm partners to make efforts to enact procedures that will deter unethical behavior. These measures may include professional ethics education, the development of policies or procedures to address ethics concerns that arise, and the creation of an ‘ethical atmosphere’ (citations omitted). Other policies and procedures that a firm should have in place are those designed to avoid conflicts of interest, ensure deadlines are met, account for client funds, and provide supervision and support to inexperienced lawyers. Restatement (Third) of Law Governing Lawyers § 11 cmt. G(2000); accord M.R. Prof. Conduct 5.1(a) & cmt. (2) (providing the current iteration of M. Bar R. 3.13(a)(1)). Appropriate supervision may vary depending upon the size and nature of the law firm, but cannot be expected to guarantee against all violations of the Code. See 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 42.4 (3d ed. Supp. 2010). Compliance with this rule, unlike with Rule 3.2(e)(1), is determined based on an objective standard of reasonableness (citation omitted).”

Conclusion

While this summary is not a binding precedent for any Wisconsin lawyer, it does create guidance for supervising lawyers to consider when seeking to define their responsibilities, whether supervising one lawyer or serving as a member of management committee for a law firm. Lawyers should remember that they have various responsibilities when supervising another lawyer or group of lawyers and should take steps to ensure that policies and procedures are in place to engage in an effective level of supervision and oversight.

Wisconsin Lawyer