Is Your Law License At Risk?

Managing Attorneys already have a lot on their minds. One thing they often overlook is the risks to their law license from failure to comply fully with MRPE 5.1 and 5.3. Although some state versions (e.g., Texas and California) vary from these model rules, they still place a general burden on any attorney who supervises the work of others.

Rule 5.1 requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify deadlines in pending matters, account for client funds and property and properly supervise inexperienced lawyers. Rule 5.3 requires the same effort to ensure that non-lawyers in the firm will also conform to the Rules. So what constitutes “reasonable efforts?”

Rule 1.0(h) defines “reasonable” as the conduct of a reasonably prudent and competent lawyer. The effort, then, becomes those that a reasonably prudent and competent lawyer would take. Since that is still not very clear, we have to look at ethics opinions.

First, the bad news. Ethics committees are getting more savvy. They know that lawyers have dozens of ways to use simple software tools to manage their practices and staff. They use such tools themselves and no longer will tolerate luddites who help create problems by failing to employ affordable, preventive measures. They also are not impressed by lawyers who set up systems but then do not use them effectively, even if no harm actually occurs.*

Additionally, even where the rule does not expressly use it, disciplinary panels apply the “knew or should have known” standard, rather than actual knowledge of any violation by a member of the firm. See, for example, the panel recommendation affirmed in In re Conwell.

Now the good news. It does not take a lot to meet this threshold. Start by training all your staff on the rules. Make sure everyone, lawyer and non-lawyer alike, understands that all the rules apply to all of them.

Next, ensure you have or that you implement systems that fix gaps in your office. There are many software options ranging from free to expensive, depending on what you want the tool to do for you.

Finally, be able to prove that you did in fact establish and use those systems. “If it is not in the file, it did not happen” is a still good rule of thumb, even in today’s digital information age and regardless of whether your “file” is electronic or paper. Although lawyers advise clients frequently on the need for compliance, they too often overlook their own compliance obligations. A few simple steps can make a huge difference should any ethical issues arise down the road.

* In the Matter of Sullivan II (Review Dept. 1997) 3 Cal. State Bar Ct.Rptr. 608, 1997 Calif. Op. LEXIS 184, 5-6 (the "failure to maintain an effective calendaring and follow-up system as a means of supervising employees and monitoring cases places the attorney at risk of violating the Rule regardless of whether the attorney has actual knowledge of the status of the case") (secretary's misconduct of hiding and throwing away files, incoming pleadings, notices and other documents did not excuse attorney's failure to seek court approval of client's settlement).