Posted on: 8/30/2012
Dina M. Cox, Janelle P. Kilies
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As we all know, everyone makes mistakes—even supervising attorneys. Learning how to address mistakes may be a challenging task but, once mastered, will only help to build rapport and strengthen your working relationship with your supervising attorneys, along with helping to avoid a potential disciplinary action under the Model Rules of Professional Conduct. This article will offer suggestions for addressing your supervising attorney’s mistake in a professional and respectful manner, while discussing the importance of doing so under the Model Rules.
First and foremost, be certain that a mistake actually exists. It is important to identify what you believe to be a mistake, and then double check to ensure that it is in fact a mistake. Once identified, print all sources necessary to highlight the nature of the mistake.
Next, set up a time to meet with your supervisor. In preparation for this meeting, be sure to have at least one solution ready, so that the conversation can move quickly from the supervising attorney’s mistake to what can be done to correct the error. It is important that this meeting be held privately and in-person; no one wants to have his or her mistake publicized throughout the firm. Additionally, do not take the time to bring up trivial mistakes when there are material ones to be discussed.
Be sure to focus your attention on the mistake at hand, the possible effects the mistake may have on the current issue, and if applicable, the broader effect that might be had on the case and/or litigation more generally. Do not focus your attention on your supervisor’s flaws, but broach the mistake in a way that shows initiative and a desire to follow sound business practices.
For example, a good way to start the conversation might begin with, “While reviewing this document, I ran across something that may misinterpret a specific portion of the law. I think it would be best if we proactively undertook to correct it early. Would you like me to handle doing so?” Then proceed with an explanation of possible solutions that address the specific issue. This way, the attorney is not only made aware of the mistake but, because you came prepared with a possible solution and framed it in a respectful manner, he or she will likely be impressed with your diligence in recognizing the mistake and your professionalism in bringing the issue to his or her attention.
What About Rule 5.2 of the Model Rules of Professional Conduct?
The Model Rules of Professional Conduct may come into play when determining whether you have a legal or ethical obligation to point out a mistake or potential unethical or illegal action to your supervising attorney. Through the Rules, it is clear that there are situations when you, as the associate, may be on the hook for your supervisor’s mistake. Model Rule 5.2(a) states that a “lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” On the other hand, Model Rule 5.2(b) provides 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.” For many years, junior associates attempted to avoid professional discipline under Rule 5.2(a) by relying on Rule 5.2(b) as a defense. However, reliance on your supervising attorney’s orders is a defense to a charge of misconduct only when reasonable. In re Howes, 940 P.2d 159 (N.M. 1997) (rejecting junior prosecutor’s Rule 5.2(b) defense because there was no arguable question of professional duty). More recently, courts and state bar ethics commissions have become weary of the Rule 5.2(b) defense and found junior associates more likely to be held accountable for their actions, even if acting under the direction of a supervising attorney. See, e.g., Colorado v. Casey, 948 P.2d 1014, 1016-17 (Colo. 1997) (holding that an associate’s failure to inform the tribunal that his client was using another person’s identity was not reasonable under Rule 5.2 to avoid professional discipline); Statewide Grievance Comm. v. Glass, 1995 WL 541810, at *2 (Conn. Super. Ct. Sept. 6, 1995) (declining to excuse associate’s dishonesty for submitting a false loan application even though he followed superior orders and did not believe he was committing a criminal act); In re Douglas’ Case, 809 A.2d 755, 761-62 (N.H. 2002) (rejecting Rule 5.2(b) defense because question of professional duty was not arguable when associate withdrew entire escrow account and applied it to client’s legal fees); Kelley & Calahin, 627 A.2d 597, 600 (N.H. 1993) (rejecting an associate’s invocation of the Rule 5.2(b) defense to a finding that the associate and senior lawyer violated the conflict of interest rules by their dual representation of two beneficiaries to a trust); In re Bowden, 613 S.E.2d 367, 368-69 (S.C. 2005) (rejecting Rule 5.2(b) defense and reprimanding associate for failing to identify and track client funds).
Therefore, learning how to address mistakes may not only benefit your legal career, including your rapport and relationship with your supervising attorneys, but will likely help to keep you out of the disciplinary office.
Dina M. Cox is a partner with Lewis Wagner, LLP who focuses her practice on the defense of complex litigation, including legal malpractice, drug and medical device, products liability, consumer class actions, and insurance coverage and bad faith lawsuits. Ms. Cox may be reached at email@example.com or (317) 237-0500.
Janelle Kilies graduated from the Indiana University Robert McKinney School of Law and sat for the Indiana bar examination in July 2012. She will begin her legal career with the law firm of Lewis Wagner, LLP in Indianapolis, Indiana, focusing her practice on the defense of complex litigation and legal malpractice lawsuits.