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Start with the premise that if you're a law firm partner, your responsibilities include seeing to it that your firm adopts measures that give "reasonable assurance" that the
conduct of your non-lawyer employees and associates is "compatible" with your professional obligations. See Rule 5.3(a), R. Pro. Con. Likewise, if you have direct supervisory authority over someone else, you must "make reasonable efforts to ensure that the person's conduct is compatible" with your professional obligations. See Rule 5.3(b), R. Pro. Con. Remember, too, that you're responsible for conduct that would constitute a violation of the Rules of Professional Conduct if you did it, ordered it, knew about and ratified it, or knew about it "when its consequences can be avoided or mitigated" but failed to fix it. See Rule 5.3(c), R. Pro. Con. The policy reasons behind the rules are sound: they promote professional competence and protect the public interest. See e.g. Mays v. Neal, 938 S.W.2d 830, 835 (Ark. 1997).
Training and supervision are the keys to avoiding problems, and careful documentation of your efforts will help you avoid being sanctioned for the actions of rogue employees. This
article will help you consider the measures to take in protecting your clients, and in turn, may help you avoid or more easily resolve a Bar complaint. Here are some basic suggestions:
Vet your prospective employees.
The best thing you can do for your practice and your own peace of mind is to hire honest and reliable employees. Thoroughly check references, but don't stop there. Talk to former employers, ask about unexplained gaps in the work history, and make forthright inquiries about arrests and convictions. I'm not suggesting that people don't deserve a second chance, but you might think twice about hiring someone who has embezzled money from a previous employer, or forged documents for personal gain, or been fired from a previous position for hiding the mail. See e.g. In re Marshall, 498 S.E.2d 869 (S.C. 1998) (attorney hired childhood friend; after employment terminated, employee's embezzlement came to light, and attorney discovered employee had criminal record for fraudulent checks). Law offices require personnel of the highest integrity.
Educate your employees about your ethical obligations. I'd start by having them read the current Rules,1 then meeting to review those with special significance for non-lawyer employees. Be sure to explain the reasons for particular rules - some of them aren't obvious to non-lawyers. From my perspective, the short list would include the rules governing diligence, communication, confidentiality, conflicts of interest, trust accounts, candor and honesty, communications with persons represented by counsel, and the unauthorized practice of law. Illustrate with examples, and encourage questions. Underscore the importance of confidentiality by having employees sign a confidentiality agreement. Make a note in the personnel file that you've taken these steps, and keep a copy of the agreement.
Make training a continuing priority.
Encourage your employees to attend appropriate skill improvement courses and workshops, but even if this isn't something you can afford, make time to meet periodically to review the office's ethical obligations. Keep in mind that people grow into their jobs, and the nuances of the rules may become clearer to someone who has had a little experience. Use internal memoranda to remind people of their responsibilities, and put copies in the personnel files as appropriate. Seek literature that reinforces ethical responsibilities and encourage your assistants to read it; this is an inexpensive way to keep ethics issues in the forefront.
Don't share fees with your assistants.
Attorneys with the best intentions sometimes consider fee-splitting as a means of developing incentive to work harder or more creatively on a case. Still, it's forbidden. So think of another way to stimulate employee incentive - additional time off later, career enhancing training, access to a more convenient parking place, or the like. And bear in mind that if you can afford it, paying your valued employees a generous regular salary is often the best incentive of all.
Keep your hands on the wheel.
Remember, you're the lawyer. This means that you don't allow your non-lawyer assistants to accept cases on your behalf. This means that you don't allow non-lawyer assistants access to your trust account. This means that you don't allow non-lawyer assistants to file pleadings you haven't personally reviewed. See
Oklahoma Bar Ass'n v. Patmon, 939 P.2d 1155, 1161 (Okla. 1997) (attorney disciplined for allowing secretary to file misleading motion). And to these ends, you don't keep a signature
stamp in the office for non-lawyer assistants' general use without direct supervision. (Better yet, donÕt have a signature stamp.) This also means that you don't delegate all client
communications to your non-lawyer employees, even if you're spread so thin that you're having trouble doing it yourself. See e.g. In re Struthers, 877 P.2d 789, 797 (Ariz. 1994) (noting
"it is no excuse that [the attorney] overburdened himself with so many cases that he was unable to properly supervise his employees").
Don't blame your staff for errors.
If you do this, you only look as though you're trying to avoid responsibility. And even if you're not trying to avoid responsibility, blaming others is never the classy response.
Don't ask or allow your staff to lie for you.
It's legitimate to be unavailable, but don't instruct your staff to tell people you're out when you're in. Likewise, don't ask or permit them to fudge about a caseÕs status or anything else for that matter. If you request or permit lying on your behalf, even on seemingly trivial matters, that becomes tacit endorsement of fundamental dishonesty.
Set the tone.
If you take your ethical responsibilities seriously, your employees are more likely to do so as well. By the same token, nothing undermines an ethically conscientious atmosphere more profoundly than an attorney who adopts a disrespectful attitude toward the Rules of Professional Conduct. Likewise, overt expressions of cynicism about the legal system and the integrity or competence of judges and others who serve the system tend to rub off and be repeated. Conduct yourself as an officer of the court and your staff will follow suit.
Consider some cautionary tales.
Essentially, we all know the general parameters of the rules. But because the intricacies of their application depend in large measure upon specific facts, here are some examples from reported cases.
A passive approach to communicating with clients isn't sufficient. So, for example, your duty of communication isn't fulfilled solely by providing your telephone number so the
client can initiate contact. See In re Flack, 33 P.3d 1281, 1285-1286 (Kan. 2001). Indeed, the rules require an attorney to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rule 1.4(b), R. Pro. Con. An attorney who never met the client, who never spoke with her on the phone, and whose only contact with the client was through his staff, violated this rule of communication. See Mays v. Neal, 938 S.W.2d 830, 834 (Ark. 1997).
Don't allow your staff to serve as a complete buffer between you and your clients. For example, an attorney was disciplined for permitting her paralegal to direct all
appointment-making, telephone calls, and mail to herself, and otherwise delegated unfettered authority over the office. See In re Marshall, 498 S.E.2d 869 (S.C. 1998). Only later did the attorney realize that correspondence had come and gone without her knowledge, and that she had clients whom she had never met.
The rules prohibit attorneys and law firms from sharing legal fees with non-lawyers.2 See Rule 5.4(a), R. Pro. Con. An attorney who received a nominal amount of the fee collected by a "company of client service representatives" and its associated companies was disciplined for violating the rule against fee sharing. In re Flack, 33
P.3d 1281, 1287 (Kan. 2001). An attorney who turned over all fees to a company of non-lawyers, with any profit remaining after the payment of expenses "distributed by agreement of
the parties," also violated the rules. In re Struthers, 877 P.2d 789, 796 (Ariz. 1994).
The trust account rules require an attorney to keep the attorney's money
separate from client money, to promptly pay clients money received on their behalf, and so on. See Rule 1.15, R. Pro. Con. An attorney was disciplined for "allow[ing] incompetent and untrustworthy employees to manage his trust account and then fail[ing] to supervise them." In
re Struthers, 877 P.2d 789, 792 (1994 Ariz.). Among other things, the attorney "routinely signed pages of blank checks for his employees to complete in his absence," and
this left them "free to decide whether and how much to pay clients." Id.
Personally review your trust account records; don't leave this to others. See In re Stransky, 612 A.2d 373 (N.J. 1992) (attorney's wife able to conceal misappropriation over period of years because attorney failed to review trust accounts and personal accounts). Direct your bank not to accept anything but your original signature. See
Oklahoma Bar Ass'n v. Mayes, 977 P.2d 1073, 1078 (Okla. 1999). Adopt an office policy that only you may open your bank statements; if you don't get one, contact your bank. See id.
On a related subject, don't allow your staff to "borrow" money from the trust account. Curtis v. Kentucky Bar Ass'n, 959 S.W.2d 94, 95 (Ky. 1998) (attorney's wife/office manager/secretary/ bookkeeper used trust account check to purchase dog, and fully reimbursed trust account within a few days).
An attorney who acknowledged her responsibility, but nevertheless blamed her staff for various failures was sanctioned for violating the rule regarding responsibility for
non-lawyer assistants. See In re Kellogg, 4 P.3d 594, 603 (Kan. 2000). Likewise, an attorney "cannot rely on the high degree of competence [his secretary] exhibited over the years and the trust he developed in her to excuse his failure to . . . guard funds over which he was a fiduciary." Office
of Disciplinary Counsel v. Ball, 618 N.E.2d 159, 162 (Ohio 1993).
Merely instructing your non-lawyer employees not to give legal advice is not enough. You must "be
pro-active to ensure that they [are] not giving legal advice to clients and other callers." In re Farmer, 950 P.2d 713, 718 (Kan. 1997). This means following up with your assistants to find out what was said during any conversations they had with your clients. See
In re Wilkinson. 805 So.2d 142, 145-146 (La. 2002).
Take extra precautions in working with assistants who have been suspended or disbarred from the practice of law. It's a
serious temptation for recently licensed attorneys to hire someone no longer allowed to practice. After all, the thinking goes, the disbarred former attorney often knows more about the
law than a green attorney, fresh from law school. Likewise, loyal friends of those whose licenses have been suspended or taken away often offer comfort in the form of paralegal work. But
beware the substantial pitfalls; in my experience, former attorneys have considerable difficulty avoiding the practice of law, particularly when it comes to offering advice. See e.g. In re Juhnke, 41 P.3d 855 (Kan. 2002). One way to avoid problems is to maintain a firm rule against having the former attorney meet with clients, or communicate with them in any manner.
Some final thoughts.
Most of us aren't naturally gifted managers; we have to work at it. But if you take a mindful approach to educating and supervising your staff and cultivating an atmosphere of ethical awareness, you can avoid close encounters with the disciplinary system and better serve your clients at the same time.
Footnotes
1.
These are revised from year to year, and it's essential to obtain the annual Utah Court Rules Annotated volume or print the Rules of Professional Conduct published on the court web site. I recommend that attorneys take the time to read the rules in their entirety at least once a year; it doesn't take that much time, and it will keep you aware of changes.
2. The rule provides several narrow exceptions that aren't relevant to this article.
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