by Andrew J. Seger
A freshly minted lawyer working at a law firm, government office, or corporation often experiences intense desire and pressure to succeed by impressing more senior lawyers. This pressure to succeed could cause a new lawyer to overlook professional responsibilities when following another lawyer’s directions. However, all lawyers, including new lawyers taking direction from senior lawyers, are subject to the same rules of professional conduct.1 As such, every lawyer must remain cognizant of his or her own professional responsibilities, and cannot blindly rely on a supervising lawyer’s instructions or judgment.
This article addresses the embattling question of when and to what extent a subordinate lawyer may rely on the direction of a supervising lawyer when confronted with an ethical dilemma. Paramount to this discussion is recognizing the subordinate lawyer’s duty to adhere to his professional obligations, despite inconsistent instructions from a supervising lawyer. Next, it is important that a subordinate lawyer is able to identify situations in which he or she may rely on a supervising lawyer’s experience and instruction, and understand the implications of such reliance. Finally, and most importantly, a lawyer should know that it is unnecessary to traverse the battlefield alone, as there are several resources for resolving such a situation without compromising his or her professional integrity or career.
The Subordinate Lawyer Rule
Model Rule of Professional Conduct 5.2 provides that a subordinate lawyer is not excused from ethical responsibilities merely because he or she was acting at the direction of another lawyer. The rule applies to all lawyers working under the supervision of another, including lawyers directly employed by other lawyers,2 whether in the private or public sector;3 lawyers leased to another lawyer through a staffing company;4 and lawyers working under a contract with another lawyer.5 Most states’ professional rules are identical6 to the rule adopted in Florida7 and by the ABA, which provides:
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Thus, a subordinate lawyer cannot blindly follow a supervising lawyer’s instruction, but is permitted to rely on the judgment of a supervising lawyer only in cases in which there is an “arguable question of professional duty” and the supervising lawyer’s resolution of the issue is reasonable.8
When there is no “arguable question of professional duty,” a subordinate lawyer must adhere to the rules of professional conduct, even if it conflicts with instructions from a supervising lawyer.9 This is true even if following the ethical rules could cause the subordinate lawyer to be fired.10 For instance, an overworked public defender who knows that she cannot take on another case while providing competent representation to all of her clients must decline to accept the next file her supervising attorney assigns her.11 The public defender must not accept the next case even if her supervising lawyer believes that she can, or should be able to, handle the caseload.12 Thus, in order for a subordinate lawyer to determine whether to rely on the instruction of a superior lawyer or to break rank, a subordinate lawyer must identify whether a situation presents an “arguable question of professional duty.”13 Unfortunately, not all cases are as simple as the public defender who knows she cannot accept another case.
Arguable Questions of Professional Duty
Generally, there are three types of situations that may create an “arguable question of professional duty.” The first arises from unknown facts: a lawyer’s professional responsibility depends upon the resolution of a factual question, and once the factual question is resolved, the lawyer’s professional duty is clear.
For instance, a Pennsylvania lawyer became concerned when a supervising attorney instructed him not to communicate a settlement offer to his client, potentially violating Rule 1.4 regarding client communication.14 The subordinate lawyer did not know whether the supervising attorney had already communicated the offer to the client, or if the client had previously authorized the firm to reject offers at certain dollar amounts.15 In this situation, the subordinate lawyer had a duty to investigate those issues in order to determine whether he had a professional duty to communicate the offer to his client.16 After resolving the factual issue, the subordinate lawyer’s duty would presumably become clear: If the client did not know of the offer, or had not previously authorized rejection of all offers at certain amounts, the lawyer must communicate the offer to the client despite his supervising attorney’s instruction.
The second situation giving rise to an “arguable question of professional duty” involves an unanswered question of law. When a lawyer’s professional duty turns on an unresolved legal question, a subordinate lawyer’s duty is two-fold.17 First, the lawyer must investigate the law in an attempt to resolve the legal question. If, after investigation, the point of law remains questionable, the lawyer is permitted to rely on a supervising lawyer’s opinion as to how the question of law would be resolved. Then, the subordinate lawyer must act in accordance with his or her professional duties as if the question of law was settled.
For instance, a Connecticut lawyer was instructed by her supervising attorney to refer her client to a nonlawyer “land-use consultant” who represents parties before municipal land use agencies.18 She became worried that doing so violated Rule 5.5, which prohibits assisting someone in the unauthorized practice of law.19 In that case, whether the “land-use consultant” was engaged in the unauthorized practice of law was a legal question, and the lawyer had a duty to investigate the law to determine whether representing clients before a municipal land use board was deemed practicing law.20 After investigating the law, it was unclear if such representation was considered the practice of law in Connecticut and, as such, the subordinate lawyer was permitted to rely on her supervising lawyer’s resolution of that legal issue.21 If the supervising lawyer determined that the land-use consultant was not engaged in the practice of law, the subordinate lawyer could make the referral. On the other hand, if the supervising lawyer determined that the land-use consultant was practicing law, the subordinate lawyer could not.
The third situation involves a gray area in the professional rules. Professional rules of conduct, by necessity, contain some amount of ambiguity. As with any rule proscribing how one should act, it is impossible for a professional rule to directly address each and every ethical dilemma a lawyer might encounter. In a situation in which the application of a professional rule is uncertain, a subordinate lawyer can rely on a supervising lawyer’s determination of how the rule would apply.
For example, a subordinate lawyer may be concerned that a conflict exists between two clients, but it is unclear whether his representation of one client will be “materially limited” by his responsibilities to another client. The lawyer can rely on his supervising attorney’s resolution of that question.22 In this situation, the subordinate lawyer knows all the facts about the representation, there is no underlying legal question that needs to be resolved, and the “arguable question” arises only from the necessarily ambiguous language of the regarding conflicts of interest.23
Reasonable Resolution of an Arguable Question
After identifying an arguable question of professional duty, the subordinate lawyer is permitted to rely on a supervising lawyer’s “reasonable resolution” of the question.24 In most cases, there is little reason to doubt the prudence of a supervising attorney’s resolution of an issue. However, there are instances in which a subordinate lawyer should not rely on a supervising attorney’s instruction, even when there is an arguable question of professional duty.
For instance, a subordinate lawyer should not rely on a supervising attorney’s resolution of a question of professional duty if the supervising attorney is not licensed in the jurisdiction that would enforce the professional rules.25 The subordinate lawyer rule is based, in part, on the assumption that the supervising lawyer has experience interpreting and applying the rules of the jurisdiction. Moreover, the supervising lawyer is expected to uphold the professional rules of a jurisdiction because the bar authority has the power to discipline the lawyer’s noncompliance.26 As such, in resolving a question of professional duty, a subordinate lawyer should not rely on the instruction of a supervising lawyer that is not licensed in the relevant jurisdiction.
Additionally, in certain circumstances it may be unreasonable for a subordinate lawyer to rely on the direction from a supervising lawyer who has a strong personal interest in how the subordinate lawyer proceeds. For example, a subordinate lawyer should not rely on the instruction of a supervising lawyer regarding the application of Rule 8.3,27 the lawyer’s obligation to report the misconduct of another lawyer, when the supervising lawyer participated in the potential misconduct.28 Even if there is an arguable question as to whether the subordinate lawyer has a duty to report conduct of the supervising lawyer, the supervising lawyer’s personal interest in the outcome makes his resolution unreasonable.29 In such a case, the subordinate lawyer should seek direction from a disinterested supervising lawyer, if possible.
Effect of Reliance on Supervising Attorney
Perhaps most important to this analysis is a lawyer’s understanding of the protection afforded under the subordinate lawyer rule. The rule is certainly not a catch-all shield from the subordinate lawyer’s professional responsibilities and duties to his or her client.30 In fact, the scope of protection afforded to a subordinate lawyer who properly relies on a supervising lawyer’s instruction is rather limited.
Assuming a subordinate lawyer properly follows Rule 5.2 in resolving an ethical dilemma, the lawyer can use his or her reliance on a supervising lawyer’s instruction as a defense during an inquiry by the governing bar authority.31 If the bar authority determines that an arguable question of professional duty exists, that the subordinate lawyer relied on a supervising lawyer’s resolution of the question, and that such resolution was reasonable, the subordinate lawyer will be protected from professional discipline despite a determination that the course of conduct actually violated a professional rule.32 Nevertheless, in jurisdictions where professional discipline proceedings are public record,33 the subordinate’s professional reputation may be tarnished despite the bar authority’s determination not to impose discipline.
Moreover, the protections afforded under the subordinate lawyer rule do not extend into the courtroom. A lawyer who is a defendant in a civil suit finds no respite in the fact that he or she relied on the advice or instruction of a supervising lawyer, as malpractice and other legal causes of action are beyond the scope of Rule 5.2.34 By now, it is generally accepted in most jurisdictions that rules of professional conduct do not define a lawyer’s duty to his or her client.35 Although a professional rule may be relevant to defining a lawyer’s duty toward a client, civil liability is not necessarily tied to a determination that the lawyer did or did not comply with the rule.36 Likewise, that a lawyer properly relied on instruction from a supervising lawyer will not conclusively defeat the lawyer’s civil liability to a client harmed by his or her action.37
A lawyer’s reliance on Rule 5.2 holds even less weight in a criminal trial. It is unlikely that Rule 5.2 is relevant to any issue in a criminal proceeding against an attorney and is probably inadmissible in criminal trials. For example, in Florida it is a felony to knowingly aid or assist another in the unauthorized practice of law.38 It is not a defense that a lawyer relied on the instruction of a supervising lawyer in doing so.39 As such, a subordinate lawyer will not escape criminal culpability under the auspices of Rule 5.2
Whether to Fall in Line or Break Rank
Decisions under Rule 5.2 can have serious and long-lasting implications on a subordinate lawyer’s career. On one hand, the lawyer may decide to rely on a supervising attorney’s instruction and face the possibility of professional sanctions up to and including disbarment if a bar authority determines that was the wrong choice.40 On the other hand, a lawyer may decide to break rank and disobey a supervising attorney’s instruction, which could adversely affect the lawyer’s employment. A lawyer faced with such a decision should remember one point: you are not an army of one. There are several resources available to a subordinate lawyer looking for help deciding how to proceed.
The simplest, and most obvious, method of resolving the issue is discussing the issue with the supervising lawyer. In some cases, the supervising lawyer may be able to easily put the subordinate lawyer’s concerns to rest. For example, consider the subordinate lawyer who is unsure whether his client was advised of a settlement offer.41 The subordinate lawyer could simply ask the supervising lawyer whether the offer was communicated to the client, or whether the client authorized rejection of all offers at certain monetary amounts. Assuming the supervising lawyer provides an honest response, the subordinate lawyer’s duties will become clear.
However, some situations may require a heightened level of sensitivity, and the subordinate lawyer may feel uncomfortable speaking directly with the supervising attorney about the issue. In such cases, the subordinate lawyer may look to other lawyers for help resolving the issue.42 Many law firms have a designated attorney who fields in-house ethical issues.43 Many corporations have “ethics hotlines” available to all employees, including nonlawyers, that are run by third-party companies and can help resolve ethical dilemmas anonymously. A lawyer who does not have access to such a resource can contact a trusted friend or mentor in the legal community and ask for advice.44
Certainly, there are circumstances in which a subordinate lawyer may be more comfortable seeking advice from someone totally disconnected from the issue. For instance, the subordinate lawyer faced with determining whether a conflict of interest exists between his clients might be wary of the advice received from another lawyer affiliated with the firm, as the lawyer may have some incentive or bias toward retaining the firm’s client.45 In such a situation, the lawyer might seek advice from his law school ethics professor or dean. Presumably, these individuals have no connection to the business ramifications of the issue and are experts in the field. Thus, they can provide independent and reliable advice on how the subordinate lawyer should proceed.
Finally, the subordinate lawyer can seek a bar association’s opinion on the issue. Several bar associations at the national, state, and local level have committees devoted to addressing lawyers’ ethical concerns and issuing written opinions of how the lawyer should proceed.46 Although these opinions are not binding on bar authorities inquiring into professional misconduct, they certainly hold great weight.47 In order to obtain the most persuasive opinion on the issue, the subordinate lawyer should pose his or her question to the ethical committee of the bar association in the jurisdiction in which he or she is licensed or in which he or she is acting.48
Every lawyer, including those working under the supervision of another lawyer, must diligently comply with the rules of professional conduct. Ultimately, a lawyer must be prepared to sacrifice his or her employment if a supervising attorney asks him or her to violate a professional duty, and the subordinate lawyer does not create a loophole for lawyers to ignore their obligations. A subordinate lawyer may only defer to the discretion of a supervising lawyer in limited circumstances: where there is an arguable question of professional duty which the supervising lawyer reasonably resolves. Due to the limited scope and application of the rule, a subordinate lawyer must be careful when relying on it, and should consult available resources in order to make a well-informed decision. By doing so, a lawyer can confidently determine the appropriate course of conduct ensuring he or she lives to fight another day.
1 The Florida Bar v. Adorno, 60 So. 3d 1016, 1028 (Fla. 2011).
2 See, e.g., Philadelphia Bar Op. 2000-4.
3 See, e.g., District of Columbia Ethics Op. 358 (2011) (applying the rule to a congressional staff attorney); Pennsylvania Bar Ass’n Committee on Ethics and Prof’l Responsibility Inquiry No. 2001-12 (2001) (applying the rule to a government agency attorney).
4 See, e.g., Michigan Ethics Op. RI-310.
5 See, e.g., Philadelphia Bar Op. 2010-4.
6 Forty-six states and the District of Columbia have adopted a rule substantially identical to Model Rule 5.2. Ohio and Utah adopted rules that omit Rule 5.2(b)’s requirement that a question of professional duty be “arguable.” Ohio R. Prof’l Conduct 5.2(b); Utah R. Prof’l Conduct 5.2(b). California and Utah have not adopted Model Rule 5.2 in any form.
7 Fla. R. Prof’l Conduct 5.2 is substantively identical to Model R. Prof’l Conduct 5.2, but the Florida rule contains subtitles.
8 Model R. Prof’l Conduct 5.2.
9 See, e.g., Michigan Ethics Op. RI-92 (a subordinate lawyer must comply with the Michigan Rules of Professional Conduct, even if ordered to do otherwise by an employer, if there is no reasonable resolution of an arguable question which supports the employer’s directive); Kelley’s Case, 627 A.2d 596, 600 (N.H. 1993) (the subordinate lawyer rule is not a defense when the conflict would be obvious to a disinterested lawyer).
10 See, e.g., Jacobson v. Knepper and Moga, P.C., 706 N.E.2d 491, 494 (Ill. 1998) (lawyer cannot recover against law firm for allegedly firing him in retaliation for objecting to firm’s practice of filing lawsuits in improper venue); Balla v. Gambro, 548 N.E.2d 104 (Ill. App. 1991) (in-house lawyer cannot recover for retaliatory discharge against former employer).
11 State Bar of Arizona Ethics Op. 90-10 (1997).
13 District of Columbia Ethics Op. 358 (2011) (a subordinate lawyer who prepares subpoena in violation of Rule 4.4 (embarrassment and delay) or Rule 8.4 (interference with the administration of justice) violates the rules of professional conduct, but is protected by Rule 5.2 if the subpoenas arguably do not violate those rules).
14 Philadelphia Bar Op. 94-26 (1994).
17 See, e.g., New York R. Prof’l Conduct 5.2 comment 2 (a subordinate lawyer should undertake research to determine whether an arguable question of professional duty exists).
18 Connecticut Ethics Op. 96-20 (1996).
22 Model R. Prof’l Conduct 5.2 comment 2.
23 Model R. Prof’l Conduct 1.7(a)(2); Florida Rule Prof’l Conduct 1.7(a)(2).
24 Michigan Ethics Op. RI-92 (a subordinate lawyer must comply with the Michigan Rules of Professional Conduct, even if ordered to do otherwise by an employer, if there is no reasonable resolution of an arguable question which supports the employer’s directive).
25 State Bar of Arizona Ethics Op. 96-08 (1996); South Carolina Ethics Op. Nov. 12, 2004, available at 2004 WL 3214150.
26 Model R. Prof’l Conduct 5.1 and Florida Rule Prof’l Conduct 5.1 provide that a supervising lawyer must take reasonable efforts to ensure that his or her subordinates comply with the rules of professional conduct.
27 Model R. Prof’l Conduct 8.3(a) provides that “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Model R. Prof’l Conduct 8.3(b) provides similar reporting requirements regarding judicial misconduct. Florida’s reporting requirements are provided in Fla. Rules Prof’l Conduct 4-8.3.
28 Connecticut Ethics Op. 96-20 (1996).
30 In re Rivers, 331 S.E.2d 332 (S.C. 1984) (inexperienced attorney is held to the same standards as more experienced colleagues and has a duty to comply with professional rules despite reliance on the advice of an experienced attorney).
31 Model R. Prof’l Conduct 5.2 comment 2.
33 In Florida, disciplinary matters become public record after the investigation is concluded and a finding is entered or referral is made. Fla. R. Discipline 3-7.1.
34 Preamble to Model R. Prof’l Conduct, n. 20.
35 See, e.g., Harvard Farms, Inc. v. Nat’l Casualty Co., 617 So. 2d 400, 401 (Fla. 3d DCA 1993) (professional conduct rule does not define lawyer’s duties in civil case).
37 Fernandes v. Barrs, 641 So. 2d 1371, 1374 (Fla. 1st DCA 1994) (lawyer cannot rely on rule of professional conduct to escape civil liability).
38 Fla. Stat. §454.32 (2004).
39 Although the supervising attorney is also likely subject to prosecution under the statute.
40 Fla. R. Discipline 3-5.1.
41 Philadelphia Bar Op. 94-26 (1994).
42 Model R. Prof’l Conduct 1.6(b)(2) (a lawyer may reveal otherwise confidential client information to the extent necessary to secure legal advice about the lawyer’s compliance with the professional rules).
43 See Committee on Professional Ethics of the New York State Bar Association Op. 789 (2005).
44 Notably, the professional rules permit a lawyer to reveal otherwise confidential client information when securing advice from another lawyer about how to comply with professional obligations. See, e.g., Model R. Prof’l Conduct 1.6(b)(4).
45 See, e.g., In re Sunrise Sec. Litig., 130 F.R.D. 560 (E.D. Pa. 1989) (law firm’s communication with in-house counsel may create a conflict between the firm’s fiduciary duties to itself and its duties to its client).
46 Martyn, Fox, Wendel, The Law Governing Lawyers 5 (2009). Specifically, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility and the Ethics Department of The Florida Bar publishes ethics opinions. The Florida Bar also operates an ethics hotline that will connect an inquiring lawyer with an ethics attorney for an oral advisory opinion. See The Florida Bar, Member Services, http://www.floridabar.org.
47 Martyn, Fox, Wendel, The Law Governing Lawyers 5 ( 2009).
48 Model R. Prof’l Conduct 8.5(a) (lawyers are subject to the disciplinary authority of the jurisdiction in which they are licensed and the jurisdiction in which they provide legal services).
Andrew J. Seger is an attorney and contract specialist with the STERIS Corporation in Mentor, Ohio. He earned his BSB in operations management at Wright State University and his JD, magna cum laude, at the University of Toledo College of Law. He is licensed to practice in Florida and Ohio.
This article is submitted on behalf of the Labor and Employment Law Section, Sherril May Colombo, chair, and Robert Eschenfelder, editor.