August 2008 Nevada Lawyer

 

TIPS FROM BAR COUNSEL: RPC 5.2 (Responsibilities of a Subordinate Lawyer)

“I Was Only Following Orders” Isn’t A Preferred Defense.

BY PHIL PATTEE, ASSISTANT BAR COUNSEL

 

When the court order landed on Jim’s desk, the young lawyer sighed when he saw that his side lost. He had drafted the motion at the direction of the firm’s senior partner, who proclaimed that it would be a winner.

 

Jim had felt differently, believing that their legal maneuver was a loser and only marginally supported by prevailing law. But the senior partner ordered him to file it anyway.

 

Sad resignation turned to shock when Jim later learned that opposing counsel filed a State Bar grievance claiming that the motion obviously had been frivolous and, therefore, violated ethical rules.1

 

“But I was only following orders,” he wanted to shout, but he didn’t think such an excuse would fly. Well, maybe. Maybe not.

 

Rule of Professional Conduct 5.2(a) (Responsibilities of a Subordinate Lawyer), formerly Supreme Court Rule 186, states that an attorney must comply with ethical rules even if he or she “acted at the direction of another person.” In other words, an attorney must use independent judgment when practicing law and cannot abet misconduct.

 

Complying with RPC 5.2 can place the subordinate lawyer in the uncomfortable position of contradicting the probably more-experienced attorney who signs the paychecks. It’s hard to tell supervisors, eye-to-eye, that they’re wrong and you’re not going to follow orders.

 

But improper is improper if you know it’s improper, even if the boss told you to do it. As attorneys, we don’t do improper stuff. For example, we don’t make untruthful statements to courts.2 Similarly, a criminal prosecutor must defy an order to prosecute a matter if he or she believes no probable cause exists.3

 

Again, wrong is wrong. If you know that you can’t do it, you can’t do it. If you’re in doubt, try saying it out loud. For example:

 

“The boss says we can borrow money from the trust account.”

 

“The boss says it’s OK to backdate a court pleading.”

 

“The boss says we can have a capper follow ambulances.”

 

If it’s wrong, and everybody knows it, a command from the bridge won’t excuse your inappropriate conduct. You’ll have the privilege of going down with the captain.

 

Of course, disciplinary matters are never considered in a vacuum, and an attorney’s inexperience might mitigate the consequences of violating RPC 5.2. Although being a newly minted lawyer will not excuse wrongdoing, disciplinary panels always consider the relative experience of those accused of misconduct. The 20-year guy probably will have more worries than the newbie.

 

Finally, pursuant to RPC 5.2(b), a subordinate attorney would not be subject to professional discipline if he or she “acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” Arguing about legitimate questions of law when applied to facts is what we do. We do it in court and we do it amongst ourselves.

 

We all disagree with the boss from time to time. But when the question is reasonably arguable, someone has to make a decision.4 Judges do it in court, supervisors do it in the office. If reasonable minds can differ on an issue, it won’t be an ethical violation to do a deed with which you disagree.

 

So, if you’re faced with what appears to be a truly legitimate and arguable question of ethical requirements, you can pass the buck. Go ahead and follow orders. You’re covered, probably.

 

Phil Pattee is Assistant Bar Counsel for the State Bar of Nevada. He worked for 10 years as a prosecutor and defense attorney in San Diego before joining the State Bar in 2001. Prior to attending law school, he worked for 10 years as a newspaper reporter, including five years of covering the police and state District Court beats for the Las Vegas Review-Journal.

 

Footnotes:

1 See RPC 3.1 (Meritorious Claims and Contentions).

 

2 See RPC 3.3 (Candor Toward the Tribunal) and In re Lightfoot, F.3d 914 (7th Cir. 2000) (“Reliance on a supervisor’s orders is a defense to a charge of misconduct only when reasonable … and it is not reasonable to believe that one is authorized to mislead a court.”)

 

3 Pa. Ethics Op. 2001-23 (2001).

 

4 See Comment, Rule 5.2, Annotated Model Rules of Professional Conduct, Sixth Edition (2007).