Ethics in brief - Vicarious responsibility: the duty to train and supervise (2024)

Vicarious responsibility: the duty to train and supervise

Lawyers have an obligation to ensure their own compliance with the rules. (Calif. Bus. & Prof. Code § 6068; Calif. Rule of Prof. Conduct 1-100; ABA Model Rules of Professional Conduct (MRPC) 1.1; MRPC 5.1, Comment 8.) But do lawyers have a responsibility to ensure that other lawyers comply with the ethical rules? The answer, under both the Model Rules and under California’s rules, is yes.

Under the Model Rules, experienced lawyers bear the responsibility to ensure new and inexperienced lawyers receive appropriate training and supervision. The Model Rules define the supervising lawyer as “a partner in a law firm” or “one with comparable managerial authority,” and prescribe three key duties. (MRPC 5.1.)

First, the supervising lawyer has an obligation to develop firm systems and policies that ensure rule compliance. The supervising lawyer “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.” (MRPC 5.1(a).) Moreover, the comments to Rule 5.1 envision a situation where a supervising lawyer can be held responsible for a failure to institute reasonable procedures and policies, even where the supervising lawyer neither committed the violation nor knew of its existence. (MRPC 5.1, Comment 6.)

Second, the supervising lawyer has an obligation to ensure that lawyers under direct supervision comply with the rules of professional conduct. (MRPC 5.1(b).) Third, a supervising lawyer has an obligation to take remedial measures when he or she discovers a rule violation by a lawyer under his or her supervision. (MRPC 5.1 (c).)

The current version of the California Rules of Professional Conduct does not contain an express rule regarding supervisory obligations of partners and other lawyers in managerial positions. The duty of diligence and competence in California Rule 3-110 covers a general duty of competent supervision, but lacks the specificity of Model Rule 5.1. The California Supreme Court recognizes the obligation to develop appropriate office procedures and to supervise law office staff, as well as the duty to provide effective supervision to junior lawyers. (See Trousil v. State Bar (1985) 38 Cal. 3d 337, 342 (“lapses in office procedure…[may be] deemed ‘wilful’ for disciplinary purposes”); Gabba v. State Bar (1990) 50 Cal. 3d 344, 353 (duty to supervise other lawyers); Waysman v. State Bar (1986) 41 Cal. 3d 452, 455 (duty to supervise law office staff); see also, Calif. Ethics Opn. 1997-50 at 3 (“Each attorney has the obligation to supervise his or her subordinates and employees.”).)

California’s Proposed Rules of Professional Conduct (which are currently pending before the State Bar Board of Governors and the Supreme Court) contain language almost identical to Model Rule 5.1. In addition, the comments to California’s Proposed Rule 5.1 contain language that clarifies the attorney’s obligation to train new lawyers. For example, one comment notes that “[a]dequate supervision is particularly appropriate when dealing with inexperienced lawyers.” (California Proposed Rules of Professional Conduct, September 22, 2010, Rule 5.1, Comment 9).

In sum, both the California Rules and the Model Rules recognize the professional duty to train and supervise new and inexperienced lawyers. In teaching new lawyers, we can draw a distinction between the rules of professional responsibility and ethical conduct. The rules provide a baseline – the bare minimum. The rules define certain issues and give notice that certain types of behaviors may result in sanctions (disciplinary, criminal, or civil liability). But ethical conduct is something different. Ethical conduct describes both the norms of actual behavior (how people behave) and aspirational behavior reflecting moral intentions (how people should behave).

The rules require experienced lawyers to train and supervise new and inexperienced lawyers. But perhaps more importantly, the training and supervision of a new lawyer demonstrates ethical conduct. We should do it not only because it’s required by the rules, but also because it’s the right thing to do.

– Timothy Casey, California Western School of Law

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author and not of SDCBA or its Legal Ethics Committee.**