Attorney E-Newsletter

September 2006

Rule 5.2: Subordinate Lawyers and Nonlawyer Employees

Rule 5.2 defines the responsibilities of subordinate lawyers - lawyers working under the supervision of other lawyers. Examples of a subordinate lawyer would be an associate in a law firm working under the direction of a partner, an assistant district attorney subject to the direction of the district attorney, and a lawyer in a corporate law office under the supervision of general counsel.

The requirements of Rule 5.2 are brief and were not significantly altered in the 2004 amendments. Rule 5.2(a) makes it clear that a subordinate lawyer is still bound by the requirements of the Rules of Professional Conduct, but Rule 5.2(b) provides that a subordinate lawyer may defer to a supervising lawyer's "reasonable resolution of an arguable question of professional duty." Thus the subordinate lawyer could rely on a supervisor's interpretation of whether a fairly attenuated client relationship created a conflict of interest, but could not accept a supervisor's direction to submit perjured testimony to a court or false billings to clients, which are not "arguable questions of professional duty." The subordinate lawyer's reliance on a supervisor's direction may be relevant both as to whether the lawyer has violated one of the Rules of Professional Conduct that has an element of state of mind or intent, and also to the weight of the violation for purposes of determining the appropriate discipline.

Rule 5.3 deals with oversight of nonlawyer assistants. Rule 5.3 was amended in a major respect when the former language, which read that a lawyer "should" perform certain tasks in oversight of nonlawyer employees, was amended to read "shall." This means that the rule, which formerly provided nonbinding guidance, now states a mandatory level of supervision. These duties require the lawyer or law firm to have measures in effect to assure that nonlawyer staff's conduct is consistent with the lawyer's professional obligations. As to staff under a lawyer's direct supervision, the lawyer must assure that staff's conduct is compatible with the lawyer's professional duties. For staff of the office in general, the duty is one of policies; for staff under a lawyer's direct supervision, it expands to actual oversight of conduct. These duties are imposed not just on partners, but also on lawyers who "possess comparable managerial authority."

Rule 5.3(c) defines the circumstances under which a lawyer may be subject to discipline for a nonlawyer assistant's conduct. These circumstances include:

  • When the lawyer orders the conduct.
  • When the lawyer, knowing of the conduct, ratifies it.
  • When a lawyer with direct supervisory authority knows of the conduct in time to avoid it or mitigate the consequences and fails to do so.

Supreme Court Suspends Lawyer for False Statements

In an opinion published Wednesday, the Supreme Court of Pennsylvania has again demonstrated that it will deal harshly with lawyers who make false statements in judicial proceedings, over a dissent by two members of the Court who did not find the statements to be material.

The case of Office of Disciplinary Counsel v. DeAngelus, No. 1020 Disciplinary Docket No. 3, Disciplinary Board No. 189 DB 2003 (September 27, 2006) involved a statement made by the respondent-attorney at a hearing on an appeal from a summary conviction of Section 1301 of the Motor Vehicle Code, 75 Pa.C.S. § 1301 (driving unregistered vehicle) and Section 1786, 75 Pa.C.S. §1786 (failure to maintain financial responsibility). The respondent-attorney advised the Assistant District Attorney prosecuting the case that he had reached an agreement with the arresting officer to allow his client to plead guilty to the §1301 count and drop the §1786 count. This would have the effect of avoiding suspension of his client’s driver’s license. The Assistant District Attorney testified that he relied upon the respondent-attorney’s statement that the arresting officer had agreed to the disposition in his decision not to contest the pleas. An intern with the District Attorney’s office confirmed that the respondent-attorney had stated that the officer agreed to the disposition. Respondent presented the plea to the court and placed in evidence registration materials showing that the automobile was not registered in his client’s name, but in her estranged husband’s. Based on this, the court convicted his client of the §1301 count and acquitted her on the §1786 count. Later the police officer testified that he had never discussed the disposition with the respondent-attorney.

The majority opinion, written by Justice Newman, found that the respondent-attorney had made false statements, that the Assistant District Attorney had relied on these statements, and the false statements materially affected the outcome of the proceeding. The majority found that this was sufficient to prove violation of (1) RPC 4.1(a), which forbids a lawyer "[i]n the course of representing a client" to "knowingly make a false statement of material fact or law to a third person," (2) RPC 8.4(c), which forbids lawyers to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation," and (3) RPC 8.4(d), which prohibits "conduct that is prejudicial to the administration of justice." The Disciplinary Board had recommended disbarment, but the majority determined that the respondent-attorney should be suspended for five years.

In a dissenting opinion, Chief Justice Cappy, joined by Justice Castille, noted that the respondent-attorney introduced evidence showing that his client was not the owner of the vehicle, and thus that she was actually innocent of violation of §1786. The minority would have dismissed the charges on the basis that the respondent-attorney’s misrepresentation, if it did occur, was not material because his client was actually innocent and Respondent introduced evidence sufficient to demonstrate her innocence. Thus, reasoned the minority, the outcome was the same as it would have been if the respondent-attorney had not made any misrepresentations, and there was no misrepresentation that was material or prejudicial to the outcome.

Tip of the Month

Working on a contingent fee? Be sure it is in writing, and that it states whether the percentage to be taken is calculated before or after deduction of expenses. This is specifically required by Rule 1.5(c).

Law Offices And The Americans With Disabilities Act

Lawyers should be aware that law offices are specifically identified as "places of public accommodation" under Section 301(7)(F) of the Americans with Disabilities Act, 42 U.S.C. §12182. Under Title III of this Act, law offices as places of public accommodation have certain responsibilities to individuals with disabilities, which include architectural accessibility in new construction and "nondiscriminatory eligibility criteria; reasonable modifications in policies, practices, and procedures; provision of auxiliary aids; and removal of barriers in existing facilities" for all offices.

A New York lawyer who represented a client with a hearing disability in a divorce entered into a consent settlement requiring him to provide sign language interpreters for clients with hearing disabilities after his client complained that his makeshift ways of communicating with her were inadequate and ran up the hourly costs of her representation.

Places of public accommodation which can communicate with clients with a hearing disability by means such as pencil and paper are permitted to do so, but legal counseling is considered a more complex level of communication, for which interpreters may be necessary. A comment to the ADA's Title III regulations states, "It is not difficult to imagine a wide range of communications involving areas such as . . . legal matters . . . that would be sufficiently lengthy or complex to require an interpreter for effective communication." [Commentary to § 36.303] This responsibility is limited where the accommodation would cause "fundamental alteration in the nature of . . . services . . . being offered or . . . an undue burden, i.e., significant difficulty or expense." Apparently the cost of an interpreter was not considered an undue burden in the New York case.

The Department of Justice lists the following responsibilities of public accommodations under Title III of the ADA:

  • Provide goods and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.
  • Eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy the goods and services of a place of public accommodation.
  • Make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration would result in the nature of the goods and services provided.
  • Furnish auxiliary aids when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.
  • Remove architectural and structural communication barriers in existing facilities where readily achievable.
  • Provide readily achievable alternative measures when removal of barriers is not readily achievable.
  • Provide equivalent transportation services and purchase accessible vehicles in certain circumstances.
  • Maintain accessible features of facilities and equipment.
  • Design and construct new facilities and, when undertaking alterations, alter existing facilities in accordance with the Americans with Disabilities Act Accessibility Guidelines issued by the Architectural and Transportation Barriers Compliance Board and incorporated in the final Department of Justice title III regulation.

Here are links to some useful materials on Title III of the ADA: