ROLES AND RESPONSIBILITIES OF PARTNERS, SUPERVISORY, AND SUBORDINATE LAWYERS THE LOUISIANA RULES OF PROFESSIONAL CONDUCT RULE 5.1 The Louisiana Supreme Court adopted Louisiana Rules of Professional Conduct Rule 5.1 (Responsibility of Partners, Managers, and Supervisory Lawyers) on January 21, 2004. The Rule became effective on March 1, 2004 and has not been amended since. Rule 5.1. Responsibility of Partners, Managers, and Supervisory Lawyers (a) (b) (c) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. A lawyer shall be responsible for another lawyer s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. THE LOUISIANA RULES OF PROFESSIONAL CONDUCT RULE 5.2 The Louisiana Supreme Court adopted Louisiana Rules of Professional Conduct Rule 5.2 (Responsibility of Subordinate Lawyers) on January 21, 2004. The Rule became effective on March 1, 2004 and has not been amended since. Rule 5.2. Responsibility of a Subordinate Lawyer (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer s reasonable resolution of an arguable question of professional duty. 1
Violations of Rule 5.1(a) By Partners RECENT EXAMPLES OF SANCTIONABLE CONDUCT As noted above, the Louisiana Rule of Professional Conduct Rule 5.1(a) requires each partner in a law firm to make reasonable efforts to ensure that other lawyers in the firm conform their conduct to the Louisiana Rules of Professional Conduct. Below are recent cases involving violations of Rule 5.1(b) by law firm Partners. In re McBride, 2015-B-1022 (La. 7/1/15) Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which Respondent acknowledged that he failed to make reasonable efforts to ensure that other lawyers in his law firm conformed their conduct to the Louisiana Rules of Professional Conduct, in violation of Rule 5.1(a) of the Louisiana Rules of Professional Conduct. The Louisiana Supreme Court accepted the Respondent s petition for consent discipline, and publicly reprimanded him. Respondent acknowledged that he failed to make reasonable efforts to ensure that other lawyers in his law firm conformed their conduct to the Louisiana Rules of Professional Conduct, in violation of Rule 5.1(a) of the Rules of Professional Conduct. In re Trahant, 108 So. 3d 67 (La. 2012) Respondent engaged in a law practice that included real estate closings. Id. at 69. He employed several individuals who assisted him with his practice, including both attorneys and non-attorneys. Id. at 71. Respondent engaged O Neal Jones, Jr., and attorney, to assist with his exploding real estate practice. Id. at 71-72. Respondent trusted Mr. Jones and allowed him to work unsupervised. There was no review by Respondent of Mr. Jones s work or files. Respondent also failed to supervise his other employees. Id. at 72. The Hearing Committee found that Respondent s loose running of the office, the manner in which the assignments were made, the lack of supervision and control over the employees, and the high volume of business were all factors that resulted in two clients becoming victims of the house flipping scheme that was perpetrated by Infinity, First Premier, and other entities with the help of Respondent's office. Id. at 72. Although the Hearing Committee found no evidence that supported a finding that Respondent was complicit in the fraudulent activities, the Committee found that Respondent's failure to supervise his staff allowed the fraudulent loans to be processed. Id. Accordingly, the Hearing Committee recommended that Respondent be suspended from the practice of law for sixty days, fully deferred, subject to conditions specified in its report. Id. at 75. Both Respondent and the Office of Disciplinary Counsel objected to the Hearing Committee's report and recommendation. Id. 2
The Disciplinary Board determined that the Hearing Committee s factual findings were not manifestly erroneous and adopted the same; however, the Disciplinary Board found that Respondent violated duties owed to his clients, the legal system, and the legal profession when he delegated his professional responsibilities to non-lawyer personnel and an associate lawyer who acted in violation of the Rules of Professional Conduct. Id. at 74-75. As a result, the Disciplinary Board determined that the fully deferred suspension recommended by the Hearing Committee was too lenient, that an actual period of suspension was necessary, and recommended that Respondent be suspended from the practice of law for ninety days, followed by a one-year period of supervised probation to include Ethics School. Respondent filed an objection to the Disciplinary Board s recommendation with the Louisiana Supreme Court. Id. at 75. The Court upheld the Hearing Committee s factual findings and found that Respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession, and that Respondent s misconduct caused actual harm to his clients and to the legal profession. Id. at 75-76. Based on these circumstances, the Court found that Respondent's misconduct warranted an actual period of suspension of six months, followed by one year of supervised probation to include Ethics School. Id. at 76. In re Tolchinsky, 740 So. 2d 109 (La. 1999) Respondent admitted to several violations of the Louisiana Rules of Professional Conduct (including Rule 5.1(a)) in connection with his failure to properly supervise his former employee, Jose L. Castro, Jr., a disbarred attorney who, while working for Respondent, engaged in the unauthorized practice of law and improperly solicited clients by using runners. Id. at 110. Respondent was aware of Mr. Castro's misconduct, but he did not report Mr. Castro to the appropriate authorities or take steps to stop him from practicing law. Id. at 111. The Disciplinary Board found that Respondent breached duties owed to the legal system, the profession, and the public. Id. at 110. In addition, the Disciplinary Board concluded that Respondent acted knowingly and intentionally. Accordingly, the Disciplinary Board recommended that Respondent be disbarred from the practice of law and that Respondent be assessed with all costs and expenses of the disciplinary proceedings, with legal interest. Neither Respondent nor the Office of Disciplinary Counsel filed an objection in this court to the recommendation of the Disciplinary Board. Id. The Louisiana Supreme Court upheld the Disciplinary Board s findings, concluded that disbarment was an appropriate sanction, and accepted the petition for consent discipline filed by Respondent. Id. at 111. Violations of Rule 5.1(b) By Supervisory Lawyers The Louisiana Rule of Professional Conduct Rule 5.1(b) requires each lawyer with direct supervisory authority over another lawyer to make reasonable efforts to ensure that all subordinate lawyers conforms their conduct to the Louisiana Rules of Professional Conduct. Below is a recent case involving violations of Rule 5.1(b) by law a supervisory lawyer. 3
In re Wilkinson, 805 So. 2d 142 (La. 2002) In 1996, Kimberly Emanuel approached Respondent about handling the succession of her father, who had passed away, leaving Mrs. Emanuel as executrix of his estate. Id.at 143. Respondent advised Mrs. Emanuel that he could not take the case because he was involved in an election campaign; however, he introduced Mrs. Emanuel to Paul Doug Stewart, a Mississippi law school graduate who was working as a law clerk in Respondent's office and had taken the Louisiana bar examination in July, 1996. Respondent advised Mrs. Emanuel that Mr. Stewart could handle the necessary preliminary matters in the case under respondent's supervision, and then fully assume the representation once he was admitted to the bar. Based on Respondent's assertions, Mrs. Emanuel agreed to the arrangement. According to respondent, he cautioned Mr. Stewart not to give any legal advice to Mrs. Emanuel. Id. In early September, 1996, still prior to Mr. Stewart's bar admission, the heirs began receiving notices from one of the mortgage creditors. Id. at 144. While Mr. Stewart attempted to resolve the matter with the mortgage company, he was unable to successfully handle the problem, and Mr. Stewart never advised respondent of the problems with the mortgage company. Mrs. Emanuel learned that incorrect advice given by Mr. Stewart resulted in creditors foreclosing on certain succession property and; as a result, filed a disciplinary complaint against Mr. Stewart for mishandling the succession. Id. Although the Office of Disciplinary Counsel ultimately closed its investigation into Mrs. Emanuel s complaint because Mr. Stewart was not admitted to the bar at the time of the misconduct, it initiated its own investigation into Respondent s conduct, based on his failure to supervise Mr. Stewart during the time in question. Id. The Disciplinary Board recognized that Respondent advised Mr. Stewart not to give legal advice prior to his bar admission; however, it noted that Respondent took no measures to determine what transpired at the meeting between Mrs. Emanuel and Mr. Stewart in his absence. Id. at 145. Furthermore, the Disciplinary Board found that Respondent's failure to supervise Mr. Stewart was also demonstrated by the fact that Respondent was "only generally made aware of the contents of the letter of representation drafted by Mr. Stewart and that he testified he would not have sent it out had he known the full contents of the letter. Id. Although the Disciplinary Board recognized that Respondent may not have known of the erroneous legal advice given by Mr. Stewart at the time, the Disciplinary Board found his negligent failure to supervise Mr. Stewart resulted in actual harm to his client. Id. at 145-46. Accordingly, the Disciplinary Board determined Respondent violated Rule 5.1(b) of the Louisiana Rules by failing to make reasonable efforts to ensure Mr. Stewart conformed to the Rules of Professional Conduct once Mr. Stewart was admitted to the bar and recommended a sixty-day suspension. Respondent filed an objection to the sanction with the Louisiana Supreme Court. Id. at 146. Despite the Court s determination that Respondent did not know that Mr. Stewart gave incorrect advice to Mrs. Emanuel (and accordingly, Respondent was not directly 4
responsible for the incorrect legal advice given by Mr. Stewart to Mrs. Emanuel), the Court found that Respondent, as the client's attorney, retained compete responsibility for the representation. Id. Accordingly, because Respondent failed to properly supervise Mr. Stewart, the Court concluded that Respondent breached his fundamental obligations to Mrs. Emanuel under Rules 5.1(b) and suspended Respondent from the practice of law for a period of sixty days. Id. at 146-47. Application of Safe Harbor Rule to Subordinate Lawyer Although Louisiana Rule of Professional Conduct Rule 5.2(a) provides that a lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person, Rule 5.2(b) provides subordinate lawyers a safe harbor and states that a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer s reasonable resolution of an arguable question of professional duty. Below is a recent case that analyzes the application of the safe harbor under Rule 5.2(b) to a subordinate lawyer. In re Seastrunk, 14-DB-060 (La. 12/22/15) District Attorney Asa Skinner assigned Respondent and Assistant District Attorney Scott Westerchil to prosecute the homicide of Christopher Hoffpauir. Id. at 3. Mr. Skinner, Respondent, and Mr. Westerchil agreed that there was no prosecutor who was first chair, or primarily responsible, for the case. Respondent and Mr. Westerchil simply agreed upon a division of labor between them, particularly with regard to which witnesses testimonies they would each be responsible. Id. During the trial, exculpatory evidence was discovered by the prosecution s detective and disclosed to Mr. Skinner, Mr. Westerchil, and Respondent; however, Mr. Skinner ordered Mr. Westerchil and Respondent not to disclose the exculpatory evidence to the defense. Id. at 5-6. The Hearing Committee found that Respondent violated Rule 3.8(d) of the Louisiana Rules of Professional Conduct by failing to disclose exculpatory evidence to the defendant in a criminal case and that such action caused potential injury to the defense. Id. at 12. Respondent argued that he was ordered by Mr. Skinner not to disclose the exculpatory evidence to the defense and, therefore, should be shielded from discipline for any violation of Rule 3.8(d) by virtue of the safe harbor provisions under Rule 5.2(b). Id. at 11. The Hearing Committee disagreed. The Hearing Committee noted that a subordinate lawyer is only insulated by Rule 5.2(b) when the supervisory lawyer is faced with a reasonable resolution of an arguable question of professional duty. In this case, the Hearing Committee found that the supervising lawyer s resolution was neither reasonable nor arguable and, therefore, Respondent was not eligible for the safe harbor provision of Rule 5.2(b). Id. The Hearing Committee unanimously recommended that the Respondent be publicly reprimanded for violating Rule 3.8(d) by failing to disclose exculpatory evidence to the defense. Id.at 15. 5