Law school graduates often face a decision when entering
the workforce: what type of practice to join? Some may join a government entity
or go in-house at a corporation, while many go into private practice at a law
firm. A law firm often has the resources to train associates and teach them the
ropes in how to practice law.
As part of their job, law firm associates often spend
significant time shadowing more senior attorneys and learning from them,
including receiving guidance on any ethical issues that may arise. However,
more junior attorneys do themselves a disservice if they assume that ethical
issues solely impact partners in the firm. Indeed, junior attorneys still have
obligations under the Rules of Professional Conduct, even if they also report
to more senior members of the firm.
Here are some common areas of risk for law firm associates
and tips for staying on the right side of the rules.
Junior attorneys are responsible for their conduct
Under Rule 5.2(a) of the California Rules of Professional
Conduct, "[a] lawyer shall comply with these rules and the State Bar act
notwithstanding that the lawyer acts at the direction of another lawyer or
other person." In that way, it is often not an excuse for a junior lawyer to
say they were just "following orders" if accused of failing to follow the
ethical rules.
Some associates may assume that if a more senior lawyer
directs them to engage in conduct that violates the Rules, they are somehow
immunized given the perceived imbalance of power between a partner and an
associate. But the Rule reflects that every attorney--even when supervised by
others--has their own independent duty to comply with the Rules of Professional
Conduct.
This is not an issue that associates must face alone,
however. If an associate has concerns about whether they are being asked to
violate the Rules of Professional Conduct, they can discuss this with a mentor
of the firm's in-house counsel or risk manager. A more senior team member may
be able to help advise the associate on the next steps forward--or even reassure
the associate that there is nothing to worry about. Indeed, the rules recognize
a scenario in which a subordinate lawyer acts in accordance with a supervisory
lawyer's "reasonable resolution of an arguably question of professional duty."
If reasonable minds can disagree, then it is unlikely that the associate's
compliance with the senior lawyer's directive will constitute a breach of the
ethics rules.
Attorneys are responsible for non-attorney staff
Even when just beginning in their careers, law firm
associates may be responsible for supervising nonlawyers, including paralegals,
legal assistants or other business professionals. Under California Rule of
Professional Conduct 5.3, lawyers supervising nonlawyers must make "reasonable
efforts to ensure that the [nonlawyer's] conduct is compatible with the
professional obligations of the lawyer." Supervising nonlawyers also requires lawyers
to monitor the nonlawyers and implement corrective action when necessary.
Lawyers also cannot ask a nonlawyer to take an action that
the lawyer themselves is ethically prohibited from doing. For example, if a
lawyer is not ethically permitted to reach out to a potential juror in a
matter, they cannot direct their assistant or paralegal to take that step
instead. Rule 5.3(c) notes that the attorney can be in breach of the rules when
a nonlawyer within their supervision breaches the rules and the supervising
attorney has direct supervisory authority of the person and fails to take reasonable
remedial action to help correct the improper conduct. The lawyer can also be
responsible for the nonlawyer's breach where the lawyer orders or ratifies the
improper conduct.
In this way, lawyers--even new in their careers--must give
"appropriate instruction and supervision" to nonlawyers, including being
mindful of the fact that the nonlawyers do not have legal training. Rule 5.3,
cmt.
Beware of social media
Social media has changed the way lawyers interact with the
public. It is very common for lawyers to use social media to connect with other
professionals or glean news relevant to the community. Most lawyers now know to
avoid using social media in a way that appears unprofessional, but law firm
associates may not be thinking about how their social media usage could create
risk for their firms.
For example, an associate could post their opinion about a
specific construction project in their city, noting their opposition to the
project. Even though the associate is not engaged in harassing conduct, if the
firm represents the contractor involved in that project, the associate's post
could earn the client's (or the senior partners') ire--or even create a business
conflict within the firm.
Associates should also be considerate of posting any
information online that could breach the lawyer's duty of confidentiality. Posting
about client matters may require client permission, even when the information
(such as the outcome of a court order) is technically public. Similarly,
lawyers' posts about their own work could be deemed a legal advertisement,
subject to the restrictions of the Rules of Professional Conduct.
Complying with unauthorized practice rules
While a recent law graduate waits to learn their bar exam
results, they may be supervised by a lawyer in their firm. Until the lawyer is
officially admitted to the State Bar, it is good practice to collaborate with
an admitted lawyer to help ensure that they comply with ethical obligations.
Another risk for junior members of the bar comes from
moonlighting. Law school is very expensive, and some lawyers graduate with a
significant amount of debt. Thus, a recent graduate might consider taking on a
side gig to bring in more money, even when already employed with a law practice.
For lawyers, whose second job is also in the legal services industry, there can
be significant risk.
Taking on another side hustle could create a risk of
conflicts at the day job. For example, if a lawyer moonlights at a clinic
representing tenants in claims against property managers, a conflict may arise
if the associate's law firm represents any of those property managers. As
another risk, moonlighting could put an associate's insurance coverage at risk.
The associate is likely insured through the law firm's policy, which generally
only covers legal services provided by that firm. Thus, a moonlighting associate
could be left without coverage (and thus, potentially personally liable) for
alleged legal malpractice.
Beginning a career in the practice of law is an exciting
time, rife with possibility for future development. However, if law firm
associates do not pay attention to the ethical risks that are unique to their
practice, they could find that their career is in trouble before it has even
really begun.