July 2008 Nevada Lawyer
RPC 5.1 (Responsibilities of Supervisory Lawyers)
BEING THE BOSS IS GREAT, BUT YOU’RE ALSO IN CHARGE
BY PHIL PATTEE, ASSISTANT BAR COUNSEL
“No man is an island, entire of itself…any man’s death diminishes me, because I’m involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.”
John Donne was a London-born attorney who rose to a seat in Parliament and later spent a few weeks in the notorious Fleet Prison. He believed, as his famous passage reflects, that mankind is interconnected and people cannot survive when isolated.
A century and a half after Donne wrote the above commentary in 1624, Benjamin Franklin famously told fellow signers of the Declaration of Independence that, “We must all hang together, or assuredly we shall all hang separately.”
A modern distillation of both thoughts might conclude that a person’s well-being can be greatly impacted by the actions of another. No matter how hard you try, somebody else can impact your life.
For modern-day attorneys, multifaceted events and personalities continually affect their practices. Each day is a legal juggling act of pleadings, client calls, court appearances, discovery requests and the other tasks that fall to attorneys.
And, as supervisory lawyers know, mistakes by others in your organization can have a major impact on your practice in general, a case in particular and you personally.
Rule of Professional Conduct 5.1 (responsibilities of partners, managers, and supervisory lawyers), formerly Supreme Court Rule 185, generally places responsibility for actions within a legal entity upon those in charge.
However, RPC 5.1 does not impose a “strict liability” kind of ethical accountability. Instead, managers must make “reasonable efforts” to ensure that subordinate lawyers follow ethical rules.2 Furthermore, the supervisory lawyer shall be responsible for another attorney if he or she “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”3
Finally, responsibility for another attorney’s actions can become the responsibility of any lawyer if he or she “orders, or with knowledge of the specific conduct, ratifies the conduct involved.”4
The underlying message of RPC 5.1 is that attorneys with managerial and/or supervisory authority must establish procedures which reasonably ensure that everybody follows the rules. Conversely, managing attorneys cannot create an atmosphere which makes following the rules effectively impossible.
An amazing example of law firm policies impacting the representation of clients occurred in an Alabama case5 which resulted in two-year suspensions for its two partners. Conditions in their law firm included huge caseloads, limits on time with clients and a quota system for opening cases. They also prohibited associates from returning client calls, thereby allowing more time for signing up new clients.
The court in Davis stated that the two partners, “in an effort to turn over a huge volume of cases, neglected their clients and imposed policies on associate attorneys that prevented (them) from providing quality and competent legal services.”6
But what about legal organizations which are hugely overwhelmed, but it’s not their fault? Like, for example, public defenders (PDs).
Lots of criminal defendants claim that their court-appointed attorneys routinely violate RPC 1.4 (communication). These clients, usually also known as something like No. 07-8438X, universally complain that they receive only a minimal amount of attorney-client contact.
There is little doubt that PDs would probably dispute allegations regarding communication with their clients. However, most public defenders – whether a deputy or a supervisor – probably would privately acknowledge their caseloads don’t permit extensive attorney-client interaction.
And it’s no secret, of course, that PD offices often are understaffed and have huge caseloads for each attorney, and it’s not their fault. They have little or no control regarding their funding, and their future clients don’t consult them before getting arrested.
Nonetheless, there is talk in ethics circles nationwide to hold government lawyers, including government-paid lawyers, to the same standards as private attorneys. A commonly heard refrain was reflected in a Virginia ethics opinion which stated that clients of government-provided lawyers “must receive the same protection under the ethics rules as any client obtaining legal services.”7
When the conversation turns to removal of the perceived “safe harbor” supposedly enjoyed by government-paid attorneys, the question becomes how to live in the real world and abide by ethical rules. And the hypothetical answer becomes two-part:
1. Supervisory lawyers must somehow, pursuant to RPC 5.1, adjust caseloads so deputy public defenders can effectively represent clients; and
2. Deputy public defenders must, pursuant to RPC 1.16 (declining or terminating representation) and RPC 5.2 (responsibilities regarding nonlawyer assistants), refuse additional cases if their existing caseloads would cause violations of ethical rules involving competence, diligence and communication.
Similar concerns can be applied to prosecutors, particularly when massive caseloads prevent a proper preparation of a criminal case on behalf of his or her client, which is society itself.
Those who advocate disciplining such in-the-trenches attorneys believe that politicians will have to address staffing levels when they can no longer find lawyers to work as public defenders or prosecutors. At least that’s their theory.
So what’s the lesson here for supervisory lawyers? Whether you’re a private attorney or publicly funded, your internal alarm should ring when you see a subordinate attorney walking with a pile of files. That bell might be tolling for thee.
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 Devotions Upon Emergent Occasions, Meditation XVII, John Donne (1572-1631).
2 RPC 5.1(b).
3 RPC 5.1(c)(2)
4 RPC 5.1(c)(1)
5 Davis v. Alabama State Bar, 676 So. 2d 306 (Ala. 1996).
6 Id. at 306.
7 Va. Ethics Opinion 1798 (2004).