by by Debra Moss Curtis
For many lawyers, a good staff is the most critical component of producing excellent legal services. After all, a well-trained, properly delegated and supervised staff may complete much of the necessary paperwork at a law firm, thereby allowing the lawyer to focus on tasks specific to lawyering.1 In fact, since many attorneys carry a burden of needing to produce the greatest quantity of work in the shortest amount of time, delegation to staff has become a necessary, but troublesome, reality.2 With this reality in mind, attorneys always must remember to keep a close eye on their hires, for, under the Rules Regulating The Florida Bar, they remain liable for the ultimate work product.3
Rule 4-5.3 specifically addresses this responsibility. First, the rule deals with nonlawyer assistants, laying out different responsibilities for lawyers depending upon the level of the attorney’s responsibility over a nonlawyer’s conduct.4 Under the rule, any lawyer having “direct supervisory authority”5 over nonlegal staff is responsible for making “reasonable efforts” to ensure that the nonlawyer’s conduct is consistent with the attorney’s own professional obligations.6 The lawyer will be held responsible for ordering, or ratifying with knowledge, any specific behavior by the nonattorney where the lawyer himself or herself is prohibited from the conduct.7
A partner in a law firm has even more responsibilities: A partner must make “reasonable efforts” to ensure that the firm has established procedures to keep nonlegal staff conduct compatible with the attorneys’ professional obligations.8 In addition, a partner may be responsible for conduct of his or her nonlegal staff, where that conduct is inconsistent with attorneys’ professional obligations—even if the partner neither ordered it nor ratified it.9 A partner also may be responsible for a nonlegal staff member’s conduct if the attorney has direct supervisory authority over the employee, knew that improper conduct was taking place, and failed to take appropriate mitigatory or remedial action.10
Last, Rule 4-5.3 reminds lawyers that although work may be delegated to those designated as paralegals or legal assistants, attorneys are ultimately responsible for work produced by these employees.11
The rules also govern relationships between subordinate and supervising attorneys within a single law firm.12 Rule 4-5.2 ensures that subordinate lawyers take responsibility for their own actions, even when they are under orders from supervising attorneys.13 It also ensures that subordinate lawyers are absolved of responsibility for improper actions as long as they had followed the direction of a supervising attorney’s “reasonable resolution” of an “arguable question” of professional obligation.14 The comment to this rule makes it clear that subordinate attorneys only are in the clear when dealing with a question of ethics if there is more than one reasonable answer: If there is only one reasonable solution to an ethical dilemma, both the subordinate and supervising attorneys are responsible for following and adhering to that conduct; if the dilemma has more than one reasonable solution, the supervisor’s reasonable resolution of the issue will insulate the subordinate attorney from any ramifications of that decision.15
In order to assist attorneys in properly navigating these rules, the Professional Ethics Committee of The Florida Bar has issued several written opinions in response to questions from licensed attorneys involving the supervision of staff conduct in marketing, letterhead distribution, trust accounts, real estate closings, signature powers, client interviewing, and hiring situations.16
In Opinion 89-4, the committee wrote that Rule 4-5.3, among other rules, holds nonlegal staff to the same obligations as attorneys regarding solicitation of new business.17 Specifically, the opinion states that a nonlawyer may be hired only to engage in the same solicitation of business activities as the lawyer would be permitted.18 Any attorney who orders or ratifies improper solicitation by a nonattorney at the firm therefore would be held liable for violation of the Rules of Professional Conduct.19
Opinion 86-4 notes that attorneys also must be careful in the ways in which they present their nonlegal staff to the public.20 In the opinion—which overrules previous opinion 77-14—the committee expressly stated that nonlawyer employees are permitted to be listed on letterhead or business cards, but only if their status as nonattorneys is made clear.21 This new opinion reflects a change in the realities of staffing in law firms: large and small firms alike now commonly employ personnel such as marketing directors or media relations managers.22 However, the designation is not open-ended. In Opinion 89-4, the committee specifically addressed which titles a marketing director would be permitted to place on a firm business card.23 While the board permitted the term “marketing director,” it specifically prohibited use of such titles as “solicitor” and “sales person” on letterhead or business cards.24 The board reasoned that since attorneys should not be involved in impermissible “soliciting” or “selling” of their businesses, nonlawyers—who are doing the marketing work for, and are being directly supervised by, the attorneys—also should be prohibited from such actions. Thus, any nonlawyer titles should reflect the proper range of responsibilities.25
Advisory opinions note that attorneys must be careful not only in the selection of nonattorneys, but also in the degree to which they delegate written work to nonattorneys. Opinion 64-40, reconsidered in 1987, reminded attorneys that while they may delegate to staff their trust accounting—including the actual signing of checks—they remain entirely responsible for compliance with the Bar’s trust accounting regulations.26 But while a nonlawyer can sign checks, such an employee can never sign pleadings to a court.27 However, a paralegal or other appropriately trained employee, under an attorney’s supervision and with attorney review, may prepare certain real estate documents.28
Attorneys also must be aware of the degree to which they must supervise their nonlegal staff’s contact with clients. For example, under the rules, nonlegal employees may conduct or attend real estate closings without an attorney present, so long as 1) a lawyer supervises and reviews all of the work that had been done up to that point, 2) a determination is made by a supervising attorney that the client understands all of the documents before the closing, making the actual closing little more than a “ministerial” act, 3) the client has consented to the nonlawyer’s attendance, 4) a supervising attorney is available to offer legal advice or answer any questions that the client may have, and 5) the nonlawyer does not offer any legal advice.29
Nonlegal staff also may have other types of contact with clients. For example, Rule 4-5.3 does not specifically prohibit a nonlawyer from conducting initial client interviews.30 However, the committee carefully warned that attorneys are directly responsible for the supervision of nonlawyer staff performing these duties and specifically required that nonlawyer staff clearly identify their status to the client or prospective client and that the nonattorney offers only factual information—not legal advice.31
Supervisory rules also apply to work done by clients and “rubber-stamped” by an attorney. In Opinions 75-4 and 70-27, the committee considered two scenarios in which clients prepared much of their respective collection matters without supervision of their attorneys—though the attorneys signed the appropriate documents—and then represented that the lawyers were actually involved in the preparation of the documents.32 In both instances, the committee deemed improper this lack of supervision for work performed on behalf on the attorney, even by a nonemployee.33
These supervision concerns also apply to the hiring of nonlegal staff. A firm that hires nonlegal staff previously employed by an opposing law firm “has a duty not to seek or permit disclosure by the employee” of information regarding the previous employer’s clients.34 The committee acknowledged that ethical considerations and Bar disciplinary rules do not directly apply to nonlawyers, who generally are not bound by such Bar rules. However, the committee noted that attorneys—strictly bound to maintain client confidentiality—are ultimately responsible for the conduct of their nonlegal staff in the course of representing clients.35 Therefore, both the former employer and the hiring employer are required both to warn the client of the potential for disclosure and then avoid all acts that may be construed as seeking any confidential information from the new nonlegal staff.36
In addition, the First District Court of Appeal has stated very clearly that Rule 4-5.3 imposes this supervisory duty on lawyers.37 In Stewart v. Bee-Dee Neon & Signs, Inc., 751 So. 2d 196 (Fla. 1st DCA 2000), the court reiterated the standards of Rule 4-5.3 and directly applied them to attorneys’ responsibility for nonlawyers hired by their firm to not reveal any information relating to the representation of clients.38 Although the court declined to set out specifically the procedures that firms should implement to ensure the behavior of their employees, it acknowledged that there were various methods to accomplish this task, and that law firms must take ultimate responsibility for them.39
But not all of the district courts of appeal in Florida follow the standard of the First District.40 The Fourth District’s standard, which was also adopted by the Third District in First Miami Securities, Inc. v. Sylvia, 780 So. 2d 250 (Fla. 3d DCA 2001), does not allow for screening of nonlawyer employees, but rather has an imputed disqualification based on Rule 4-1.10(b) of the Rules Regulating The Florida Bar.41 As such, supervisory duties in cases in these districts may be interpreted differently.
The Florida Bar has sought discipline against attorneys who have not met their supervisory responsibilities. In The Florida Bar v. Sweeney, 730 So. 2d 1269, 1270 (Fla. 1998), attorney Sweeney was disciplined, in part, for negligently supervising his staff. In Sweeney, the attorney reached a settlement agreement on behalf of his client, under which the client was to receive a single payment representing the full amount of the settlement.42 Sweeney filed an affidavit, purported to be signed by the client, agreeing to the terms of the settlement.43 The client, however, claimed that he never signed the document.44 The referee finder of fact found that someone in Sweeney’s office—there was insufficient evidence to show whether it was the attorney himself or a member of his staff—had forged the client’s signature.45 According to the Bar, it was irrelevant who forged the client’s signature, since Sweeney was liable for the actions that came out of his office, regardless of who did the work.46
In addition, in The Florida Bar v. Mitchell, 569 So. 2d 424 (Fla. 1990), the court held that a legal secretary’s misconduct—the forging of an opposing counsel’s name—was serious enough to warrant discipline against attorney Mitchell, for whom the secretary worked. Although the Bar acknowledged that the misconduct was the work of the nonlawyer employee, the court nevertheless held Mitchell liable for negligently supervising his employee.47 The Bar suspended the attorney from practice for 15 days, ordered him to pay costs, and imposed an order requiring Mitchell to adopt a written file supervision policy that the Bar then would approve.48
The court also has opined on a lawyer’s duty to supervise other attorneys in the lawyer’s firm. In The Florida Bar v. Hollander, 607 So. 2d 412 (Fla. 1992), a sole shareholder attorney was held accountable for the actions of his associates. In Hollander, a law firm partner directed an associate to send an unethical termination of representation notice to a client, even though the partner knew of the ethical problem in sending such a notice and nevertheless failed to avoid or mitigate the problem.49 Even though the improper action was actually committed by an associate, the partner was held accountable under Rule 4-5.3.50
So, how do you, as a supervising attorney at your firm, ensure that you and your attorneys meet all obligations under these rules?
First, assess what staff the law firm truly needs. Lawyers wishing to expand their employee bases first must determine whether their work overflow is attorney-based or support-staff based. Second, if the work is determined to be attorney-based, you should determine what level of experience is needed to accomplish these tasks. If the needed help is nonattorney based, you should determine what specific skills—typing, drafting, bill collecting—may be required to get the work done, and then hire accordingly. Third, be very careful in hiring: While a law firm should strive to match the appropriate person to the correct job, it also must not forget to find employees who come with good recommendations concerning their ethical and responsible behavior.
You also should consider taking the time and effort to promulgate the best possible employee-training program. Many law firms will take the time to train employees on technical equipment, physical procedures, and firm “image.” Adding the subject of conduct—and the ensuing responsibilities, by supervising attorneys and their charges—can help ensure that expectation levels are appropriate and certain behaviors are met.
Finally, consider designating one of the firm’s partners as the “ethics partner.” This lawyer can serve as a confidential sounding board for any ethics questions within the firm. Hopefully, attorneys and staff alike would utilize this resource, helping to head off any problems before they have the chance to turn into major violations of Bar rules. q
1 Flying Solo: A Survival Guide for the Solo Lawyer 522 (Jeffrey R. Simmons ed., ABA Law Practice Management Section, Third ed. 2001).
2 Rachel Reiland, Recent Development 2000-2001, The Duty to Supervise and Vicarious Liability: Why Law Firms, Supervising Attorneys and Associates Might Want to Take a Closer Look at Model Rules 5.1, 5.2 and 5.3, 14 Geo. J. Legal Ethics 1151 (Summer 2001).
3 Rules Reg. The Florida Bar 4-5.3 (2002).
4 Rules Reg. The Florida Bar 4-5.3 (2002).
5 The comment to Rule 4-5.1 implies that the definition of a supervisory attorney may depend on the circumstances of the firm’s structure and nature of the practice. Compare with the comment to the Texas Disciplinary Rules of Professional Conduct, which clearly states that this matter is a question of fact. Edward L. Wilkinson, Supervising Lawyers, Supervised Lawyers, Nonlawyer Assistants: Ethical Responsibilities Under the State Bar Rules, 64 Tex. B.J. 452 (May 2001).
6 Rules Reg. The Florida Bar 4-5.3(b)(2).
7 Rules Reg. The Florida Bar 4.5.3(b)(3).
8 Rules Reg. The Florida Bar 4.5.3(b)(1).
9 Rules Reg. The Florida Bar 4.5.3(b)(3)(B).
11 Rules Reg. The Florida Bar. 4-5.3(c). The rule also mandates that anyone using these titles must work for or under the direct supervision of an attorney or other business entity. Id. R. 4-5.3 (a).
12 Rules Reg. The Florida Bar 4-5.2 (2002).
14 Id. R. 4-5.2(b).
15 Comment, Rules Reg. The Florida Bar 4-5.2 (2002).
16 www.flabar.org/member services/ethics opinions.
17 Fla. Bar Prof’l Ethics Comm. Op. 89-4 (1989).
20 Fla. Bar Prof’l Ethics Comm. Op. 86-4 (1986).
23 Fla. Bar Prof’l Ethics Comm. Op. 89-4 (1989).
26 Fla. Bar Prof’l Ethics Comm. Op. 64-40 (Reconsideration 1987).
27 Fla. Bar Prof’l Ethics Comm. Op. 87-11 (1988); Fla. R. Jud. Admin. 2.060(c).
28 Fla. Bar Prof’l Ethics Comm. Op. 89-5 (1989), 73-43 (1974).
29 Fla. Bar Prof’l Ethics Comm. Op. 89-5 (1989).
30 Rules Reg. The Florida Bar 4-5.3 (2002).
31 Fla. Bar Prof’l Ethics Comm. Op. 88-6 (1988).
32 Fla. Bar Prof’l Ethics Comm. Op. 75-4 (1975); 70-27 (1970).
34 Fla. Bar Prof’l Ethics Comm. Op. 86-5 (1986).
37 Stewart v. Bee-Dee Neon & Signs, Inc., 751 So. 2d 196, 208 (Fla. 1st D.C.A. 2000).
38 Id. at 208; Fla. Bar Prof’l Ethics Comm. Op. 86-5 (1986).
39 Stewart, 751 So. 2d at 207–09. The court suggested that at a minimum, firms should consider admonishing nonlawyer employees to not discuss cases, restricting access of nonlawyer employees to certain information, and prohibiting discussions between certain members of the firm on potential problem matters. The court also stated that a nonlawyer employee who was exposed to confidential information while employed at a former firm raises two rebuttable presumptions: that the employee actually obtained confidential information that is material to the case, and that the employee did or will disclose such information to the new hiring firm. The hiring firm can then rebut either of the presumptions by demonstrating that the nonlawyer employee did not have any such information, or that there has not been any such disclosure and the firm has taken measures to ensure that it will not occur in the future.
40 The First, Second, and Fifth district courts of appeal follow the same standard expressed. First Miami Securities, Inc. v. Sylvia, 780 So. 2d 250 (Fla. 3d D.C.A. 2001).
41 Id. at 253; Koulisis v. Rivers, 730 So. 3d 289 (Fla. 4th D.C.A. 1999). The Fourth DCA chose to apply the standards imposed in Rule 4-1.10 (b) to nonlawyers as well.
42 Sweeney, 730 So. 2d at 1270.
47 Mitchell, 569 So. 2d 424.
48 Id. at 425.
49 Id. at 415.
Professor Debra Moss Curtis teaches lawyering skills and values I and II at the Shepard Broad Law Center, Nova Southeastern University. She also teaches sales financing, criminal procedure, and a workshop on law office management.
This column is submitted on behalf of the General Practice, Solo and Small Firm Section, Jack W. Bettman, chair, and David A. Donet, editor.