Watching Over, Watching Out: Lawyers' Responsibilities for Nonlawyer Assistants
53 Pages Posted: 11 Feb 2013
Date Written: December 28, 2012
Lawyers depend on the support of many different non-lawyer assistants in order to practice successfully. Unfortunately, these assistants sometimes err and are occasionally guilty of deliberate misconduct. Either way, courts and professional authorities may hold the employing or supervising lawyers responsible under Model Rule of Professional Conduct 5.3 and state analogs, as well as tort and agency law principles. This approach is consistent with clients’ expectations. In short, clients hire lawyers to represent them and while they understand that lawyers may delegate aspects of their work to lay assistants, they expect lawyers to guide the performance of those services. More broadly, clients expect a law firm’s partners to establish reasonable standards for the delivery of high-quality representation by everyone in the firm and by contractors on whom the firm relies. But if lawyers’ supervisory responsibilities for their non-lawyer assistants seem obvious, it is also true that lawyers all too often fail in them — or perhaps fail to appreciate or recognize them until it is too late. Moreover, despite the importance of lay assistants in the practice of law and the many cases in which lawyers have been disciplined under Rule 5.3 for failing to supervise assistants, scholarship on lawyers’ related duties is scarce. Lawyers and courts alike suffer from the resulting lack of guidance on key issues. This Article is intended to remedy that deficiency. In doing so, it carefully maps the contours of lawyers’ supervisory duties in this context and analyzes several issues that regularly ensnare practicing lawyers or which present special challenges. Importantly, the Article explains why lawyers who fail in their supervisory duties must be disciplined on that basis rather than being held vicariously liable for assistants’ misconduct. This is an enormously important issue in practice and, regrettably, one that some state supreme courts miss.
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