[1] Paragraph (a) applies to lawyers who
have managerial authority over the professional work of a
firm. See Rule 1.0(c). 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.
[2] Paragraph (a) requires lawyers with
managerial authority within a firm to make reasonable
efforts to establish internal policies and procedures
designed to provide reasonable assurance that all lawyers in
the firm 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 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 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, whether large or small, may
also rely on continuing legal education in professional
ethics. In any event, the ethical atmosphere of a firm can
influence the conduct of all its members and the partners
may not assume that all lawyers associated with the firm
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 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. 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).