Common Ethical, Professional Issues Faced by Associates
ALM Media
Alanna Clair and Shari Klevens.
Pictured, from left, are Alanna Clair and Shari Klevens.
With a license to practice law comes great responsibility, and that responsibility is generally not excused simply because a junior attorney was “following orders” from a more senior attorney. Indeed, associates who believe that a bar association will ignore ethical violations by associates because they were acting under the direction of partners may be in for a rude awakening.
Rule 5.2(a) of the California Rules of Professional Conduct specifically provides that a lawyer shall comply with the applicable rules “notwithstanding that the lawyer acts at the direction of another lawyer or person.” However, young lawyers entering law firms can be heavily dependent on partners for guidance and for work as they become acclimated to the practice of law. In addition, associates are often eager to please partners to establish themselves as valuable additions to the firm.
As a result of this dynamic, associates may sometimes lose sight of the fact that they have their own obligations as lawyers to comply with applicable ethical and professional obligations. Below are a few of the most common ethical issues that may arise for young lawyers.
Knowing When to Report
Certainly, no associate wants to be placed in a situation where they must choose between compliance with their ethical duties and disobeying instructions from a more senior attorney. However, by bringing concerns to the appropriate person within the firm, most issues can be addressed in a way that minimizes personal conflict while resolving the ethical concerns.
In particular, associates who observe misconduct on their matters or who are asked to participate in that misconduct can take steps to alert others, such as the firm’s internal risk manager or general counsel. Rule 8.3 of the ABA Model Rules of Professional Conduct, which has been adopted in many jurisdictions (but not California), in fact provides that “a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial questions as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
The biggest obstacle to informing others of potential misconduct is the perception that the associate will be “tattling” on the partner. However, the primary concern for associates is to protect their clients, their firms and their own professional reputation. In order to limit their own risk, firms can make clear that the reporting of misconduct will not get associates in “trouble” and can also provide associates with guidance regarding how reporting should occur.
Supervising Nonlawyers
From early on at a law firm, associates may work closely with secretaries, legal assistants, paralegals and other administrative professionals. However, as associates may be unfamiliar with the law firm environment, they may be hesitant to assume their supervisory role over other firm personnel who may have much more experience in that environment.
Nonetheless, the California Rules of Professional Conduct impose obligations on all lawyers acting as in a supervisory capacity over nonlawyers. Rule 5.3(b) provides that in such circumstances the lawyer “shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”
Many associates supervising nonlawyers will also take care to ensure that they are not instructing nonlawyers to do any task that the associates themselves are ethically prohibited from doing. Indeed, Rule 5.3(c) addresses the circumstances upon which a lawyer will be responsible for the conduct of a nonlawyer for actions that would violate the ethical rules if engaged in by the lawyer. For example, if an associate is not permitted to directly contact a witness, that associate typically cannot instruct their assistant to do so instead.
Social Media
For many new associates, social media may be an outlet to share anything and everything regarding their daily lives. In the legal community, social media can be valuable in communicating with potential clients and building networks. Accordingly, an associate with social media savvy might naturally use those platforms to promote themselves as attorneys and to comment on legal issues.
However, there can be ethical risks in posting to social media sites. For example, a personal social media profile may qualify as a legal advertisement, subject to the restrictions of the Rules of Professional Conduct. Likewise, an associate could inadvertently create an attorney-client relationship or breach the duty of confidentiality by providing advice and posting information online.
Associates can also find themselves in trouble with their law firms if they unwittingly create a business conflict. Posting a personal opinion about an industry or company could result in headaches for the associate’s firm that represents that industry or company.
'Moonlighting'
In today’s environment, it is not uncommon for associates to take a second job to explore other interests or to assist with law school debts or other expenses. A wide range of tech companies have made “moonlighting” extremely easy and something associates can do simply by logging into an app on their phone. However, although earning a little extra cash in a second job may seem completely innocent, it can create risks for the associate and her law firm. While some of these risks might be addressed through obtaining the full knowledge and consent of the law firms involved and of any affected clients, this step (which can also be quite administratively daunting) may not alleviate all potential risks.
For example, associates transporting and working on files from their off-hours legal jobs may increase the risks of breaches in confidentiality or potential conflicts of interest when working for clients during their day jobs. Further, moonlighting creates insurance coverage risks. A moonlighting associate may trigger their primary employer firm’s policy even if a representation is not directly affiliated with the firm. Even worse, an associate could be left without the protection of insurance and therefore personally liable for alleged malpractice.
The risks discussed above highlight the importance for associates to recognize and adhere to the unique duties they owe as attorneys.
Shari L. Klevensis a partner at Dentons US and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of "California Legal Malpractice Law" (2014).
Alanna Clair is a partner at Dentons US and focuses on professional liability defense. Shari and Alanna are co-authors of "The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance."
