The Duty to Supervise Non-Lawyer Employees
By Martha D. Moore

In a highly publicized, sensational, scandalous and salacious case, a lawyer’s legal secretary discloses confidential client information to the media. This confidential client information thereafter becomes the subject of frenzied media scrutiny. As a non-lawyer, the legal secretary is not subject to the scrutiny of attorney disciplinary authorities. On the other hand, the client’s lawyer had no hand in the disclosure of the confidential client information. So who is responsible for the breach of client confidentiality?

Obviously, lawyers must practice law within ethical limits, under the ever-vigilant and probing eyes of attorney disciplinary authorities. But, who is responsible for the ethical behavior of non-lawyer employees? Typical law offices are staffed by a number of non-lawyers: paralegals, secretaries, investigators, mailroom personnel, accountants, runners and office managers, to name a few. Presumably, this group is unfamiliar with the attorney rules of professional responsibility.

However, assuredly, non-lawyer employees are expected and, indeed, are required to conduct themselves ethically. Otherwise, client rights would be trampled. Moreover, ethical rules would be rendered a nullity if the conduct of non-lawyer employees escaped scrutiny.

Decisively, it is the responsibility of lawyers to ensure that their non-lawyer employees act in compliance with the professional obligations of lawyers. Specifically, lawyers who supervise or manage non-lawyer employees are responsible for ensuring that these employees understand the ethical rules applicable to lawyers and that they conduct themselves accordingly.

American Bar Association Model Rule 5.3 provides that:

With respect to a non-lawyer employed or retained by or associated with a lawyer: (1) a partner, 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 the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the non-lawyer shall take reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3)a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (A) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (B) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Supervising and managing lawyers cannot passively hire, to all appearances, competent office personnel and assign tasks with no ongoing lawyer oversight. To the contrary, lawyers must be actively involved in the supervision of non-lawyer employees.

Oftentimes, lawyers erroneously and ominously assume that non-lawyer office personnel, even long-term non-lawyer employees, are knowledgeable of the professional obligations of lawyers. Such assumptions are imprudent. Moreover, the lawyer who operates under such precarious assumptions place the lawyer’s license to practice law in substantial jeopardy.

A lawyer is responsible for the ethical violations of non-lawyer employees if the overseeing lawyer orders or ratifies conduct by non-lawyer employees. Fittingly, lawyers can not circumvent the ethical rules by ordering or ratifying unethical actions by non-lawyer employees. The supervising lawyer is also responsible for the ethical violations of non-lawyer employees if the lawyer learns of conduct by non-lawyer employees but fails to take reasonable remedial action. Under these circumstances, lawyers must not bury their heads in the proverbial sand. Rather, lawyers are obliged to take appropriate action to protect clients.

Notably, a lawyer is not responsible for a non-lawyer employee’s ethical violations if the lawyer demonstrates compliance with ABA Model Rule 5.3. Although lawyers are held to high ethical standards, they are not strictly liable for all unethical conduct committed by their employees. Nonetheless, it is essential that lawyers maintain evidence of compliance in this regard. Prudent lawyers should routinely require non-lawyer employees to execute oaths of confidentiality, for example. Such written documents, executed by non-lawyer employees, are persuasive evidence of the lawyer’s compliance with ABA Model Rule 5.3.

While lawyers are ultimately responsible for educating non-lawyer employees, lawyers are not required to personally educate non-lawyer employees. Indeed, there are numerous seminars, conferences, lectures, etc., in which non-lawyer employees can participate to obtain the requisite education and training. Again, lawyers should substantiate the non-lawyer employees’ education and training by securing appropriate certificates of completion as further evidence of compliance with ABA Model Rule 5.3.

Alarmingly, many non-lawyer employees, some of whom have worked at reputable, prestigious law firms for several years, have never been educated about the professional obligations of lawyers. Needless to say, the lawyers in these offices are playing a dangerous game of Russian Roulette with their licenses to practice law and their reputations.

So who is responsible for that breach of client confidentiality? The lawyer is responsible for the legal secretary’s disclosure of confidential client information if the lawyer failed to educate the secretary about the ethical duty of confidentiality. The lawyer is also responsible for the leaked confidential information if he or she ordered or ratified the secretary’s disclosure of the information or learned about the disclosure but failed to take reasonable remedial action.

BIO Martha D. Moore is a Thomas M. Cooley Law School Associate Professor. Her practice is concentrated in the area of professional ethics and responsibility. She has served as a prosecutor for the Michigan Attorney Grievance Commission, and is currently Commissioner of the Michigan Attorney Grievance Commission.