SECTION .0500 - LAW FIRMS AND ASSOCIATIONS

 

27 nCAC 02 RULE 5.1     RESPONSIBILITIES OF PARTNERS, MANAGERS,

AND SUPERVISORY LAWYERS

(a) A partner in a law firm, and a lawyer who individually

or together with other lawyers possesses comparable managerial authority, shall

make reasonable efforts to ensure that the firm or the organization has in

effect measures giving reasonable assurance that all lawyers in the firm or the

organization conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over

another lawyer shall make reasonable efforts to ensure that the other lawyer

conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's

violation of the Rules of Professional Conduct if:

(1)           the lawyer orders or, with knowledge of the

specific conduct, ratifies the conduct involved; or

(2)           the lawyer is a partner or has comparable

managerial authority in the law firm in which the other lawyer practices, or

has direct supervisory authority over the other lawyer, and knows of the

conduct at a time when its consequences can be avoided or mitigated but fails

to take reasonable remedial action to avoid the consequences.

 

Comment

 

[1] Paragraph (a) applies to lawyers who have managerial

authority over the professional work of a firm or legal department of an

organization. See Rule 1.0(d). This includes members of a partnership,

the shareholders in a law firm organized as a professional corporation, and

members of other associations authorized to practice law; lawyers having

comparable managerial authority in a legal services organization or a law

department of an enterprise or government agency; and lawyers who have

intermediate managerial responsibilities in a firm. Paragraph (b) applies to

lawyers who have supervisory authority over the work of other lawyers in a firm

or organization.

[2] Paragraph (a) requires lawyers with managerial authority

within a firm or organization to make reasonable efforts to establish internal

policies and procedures designed to provide reasonable assurance that all

lawyers in the firm or organization will conform to the Rules of Professional

Conduct. Such policies and procedures include those designed to detect and

resolve conflicts of interest, identify dates by which actions must be taken in

pending matters, account for client funds and property and ensure that

inexperienced lawyers are properly supervised.

[3] Other measures that may be required to fulfill the

responsibility prescribed in paragraph (a) can depend on the firm's or

organization's structure and the nature of its practice. In a small firm of

experienced lawyers, informal supervision and periodic review of compliance

with the required systems ordinarily will suffice. In a large firm or

organization, or in practice situations in which difficult ethical problems

frequently arise, more elaborate measures may be necessary. Some firms, for

example, have a procedure whereby junior lawyers can make confidential referral

of ethical problems directly to a designated senior partner or special

committee. See Rule 5.2. Firms and organizations, whether large or

small, may also rely on continuing legal education in professional ethics. In

any event, the ethical atmosphere of a firm or organization can influence the

conduct of all its members and the partners and managing lawyers may not assume

that all lawyers associated with the firm or organization will inevitably

conform to the Rules.

[4] Paragraph (c) expresses a general principle of personal

responsibility for acts of another. See also Rule 8.4(a).

[5] Paragraph (c)(2) defines the duty of a partner or other

lawyer having comparable managerial authority in a law firm, as well as a

lawyer who has direct supervisory authority over performance of specific legal

work by another lawyer. Whether a lawyer has such supervisory authority in

particular circumstances is a question of fact. Partners and lawyers with

comparable authority have at least indirect responsibility for all work being

done by the firm, while a partner or manager in charge of a particular matter

ordinarily also has supervisory responsibility for the work of other firm

lawyers engaged in the matter. Appropriate remedial action by a partner or managing

lawyer would depend on the immediacy of that lawyer's involvement and the

seriousness of the misconduct. A supervisor is required to intervene to prevent

avoidable consequences of misconduct if the supervisor knows that the

misconduct occurred. Thus, if a supervising lawyer knows that a subordinate

misrepresented a matter to an opposing party in negotiation, the supervisor as

well as the subordinate has a duty to correct the resulting misapprehension.

[6] Professional misconduct by a lawyer under supervision

could reveal a violation of paragraph (b) on the part of the supervisory lawyer

even though it does not entail a violation of paragraph (c) because there was

no direction, ratification or knowledge of the violation.

[7] Apart from this Rule and Rule 8.4(a), a lawyer does not

have disciplinary liability for the conduct of a partner, associate or

subordinate. Moreover, this Rule is not intended to establish a standard for

vicarious criminal or civil liability for the acts of another lawyer. Whether a

lawyer may be liable civilly or criminally for another lawyer's conduct is a

question of law beyond the scope of these Rules.

[8] The duties imposed by this Rule on managing and

supervising lawyers do not alter the personal duty of each lawyer in a firm to

abide by the Rules of Professional Conduct. See Rule 5.2(a).

 

History Note:        Authority G.S. 84-23;

Eff. July 24, 1997;

Amended Eff. February

27, 2003.