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You're Ethically Required to Be Better At This

While my practice as a lawyer started in the military criminal courtroom, for the last decade, my practice has been focused on ethics and professional responsibility. I am an unabashed legal ethics nerd. The Rules of Professional Conduct and expectations of practice as a lawyer are the things that make this profession special. And I see the Rules everywhere.


To me, though, the Rules are not a burden or a hinderance. They are a scaffold that supports the practice and provides reliability and stability to our clients and the public. They're underlying everything we do as attorneys, including how we lead and manage our teams.


It bears remembering that the Rules speak directly to leadership, even if that word never finds its way into the text of any rule. The most obvious place to look for relevant guidance on legal leadership is in the '5-series' rules. ABA Model Rules of Professional Conduct 5.1, 5.2, and 5.3 speak directly to "supervisory" and "managerial" responsibilities of leaders within firms and other organizations. Under these rules, lawyers with managerial responsibilities -- those who, generally, make operational or business decisions for a firm or organization -- are obligated to create the conditions for compliance with the Rules. This means establishing policies and practices that reinforce rules-compliant conduct. "Managers" have to make sure that firm's practices align with the Rules.


"Supervisors," on the other hand, have an obligation to ensure that those they supervise actually comply with the rules. Managers are responsible for setting conditions; supervisors are responsible for actually following thru.


It's noteworthy here that this is the language that establishes supervisory responsibility: it applies to a lawyer "having direct supervisory authority" over another. It does not (only) apply to the senior attorney responsible for conducting performance reviews or contributing to compensation decisions. Depending on the circumstances, supervisory authority might extend to senior associates leading a document review group or the junior partner taking the new associates out on their first deposition. The bottom line is that it's not just the partners signing the brief or shaking the client's hand.


That same managerial and supervisory responsibility also extends to our oversight of non-lawyers working for us. We have an ethical obligation to ensure that we create the conditions and provide sufficient guidance to ensure our paralegals, office staff, investigators, consultants, and experts are also "compatible with the professional obligations of the lawyer."

But the 5-series rules are just a start. Rule 8.4(a) prohibits a lawyer from "knowingly assist[ing] or inducing] another [lawyer] to [violate the Rules], or do so through the acts of another." We have reporting obligations when we know "that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer." There are conflict of interest requirements that implicate managerial and supervisory responsibilities (i.e. leadership obligations). And the fundamental rule of competence requires adequate preparation, which implicates senior attorneys' monitoring of workload and assignments.


The Rules cited here are mirrored almost exactly in every licensing jurisdiction in the United States, and these don't include other court or bar requirements addressing civility and professionalism.


I don't share this with you as a scare tactic or to suggest that you'd better brush up on your leadership skills "or else." Instead, to me, these Rules are a reminder of how important leadership is to our profession -- so important that it's written into our 'operating principles.' The Rules of Professional Conduct are what make the profession special. And fundamental to that specialness is our role as leaders -- at all levels and regardless of formal title or position. That's both a responsibility and an honor.


I'd love to talk with you or your firm more about why being a lawyer, being a leader, is so special and to help you create a culture of both compliance and success built on the framework of our ethical obligation to each other.

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