What must a lawyer who supervises nonlawyer staff (for example, a company legal department handling garnishments) do to satisfy the supervision rules?

Plain-English summary

The inquirer heads the legal department of a business that handles a large number of garnishments and other lawsuits; the department has one other lawyer and eight clerks, with procedures designed to give the two lawyers control over the staff's actions and work product. The inquirer set out three scenarios, one for the home office and two for a foreign office of the employer, and asked whether sufficient supervision and control was being provided.

The committee said the inquiry is governed by RPC 5.1, 5.2, and 5.3. It explained that RPC 5.3(b) requires a lawyer with direct supervisory authority over nonlawyers to make reasonable efforts to ensure the nonlawyers' conduct is compatible with the professional obligations of the lawyer, and that RPC 5.3(c) makes the lawyer responsible for a nonlawyer's conduct that violates the Rules of Professional Conduct if the lawyer knows of the conduct and either ratifies it or fails to take remedial action that could avoid or mitigate its consequences.

The committee observed that in each of the three scenarios the inquirer had set up training of nonlawyer staff and checks and review of their work that put control of the department's product in the hands of the inquirer or the other lawyer. But because "reasonable efforts" under RPC 5.3 are highly fact-dependent and variable, the committee said it was not in a position to opine whether the inquirer's efforts satisfied the standard. To satisfy RPC 5.1, 5.2, and 5.3, it said, the inquirer must exercise ongoing control to assure the nonlawyer staff remain within the bounds of the RPCs and, if they stray, take timely corrective or remedial action.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which revised the supervision rules (RPC 5.1, 5.2, and 5.3). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated supervision of nonlawyer staff as governed by RPC 5.1, 5.2, and 5.3, with the supervising lawyer required to make reasonable efforts to ensure the staff's conduct is compatible with the lawyer's professional obligations. Per the opinion, whether a given set of procedures satisfies the "reasonable efforts" standard is highly fact-dependent, so the committee did not pass on the inquirer's specific arrangements; it said the lawyer must keep ongoing control and take timely corrective action if staff stray from the rules.

Common questions

Q: Which rules govern a lawyer's supervision of nonlawyer staff?

A: The committee said the inquiry is governed by RPC 5.1, 5.2, and 5.3.

Q: What does the supervising lawyer have to do under RPC 5.3?

A: The committee said RPC 5.3(b) requires a lawyer with direct supervisory authority over nonlawyers to make reasonable efforts to ensure the nonlawyers' conduct is compatible with the lawyer's professional obligations.

Q: When is the lawyer responsible for a nonlawyer's misconduct?

A: Under RPC 5.3(c), as the committee described it, the lawyer is responsible for a nonlawyer's conduct that violates the Rules of Professional Conduct if the lawyer knows of the conduct and either ratifies it or fails to take remedial action that could avoid or mitigate its consequences.

Q: Did the committee approve the inquirer's specific procedures?

A: No. The committee said that because "reasonable efforts" under RPC 5.3 are highly fact-dependent and variable, it was not in a position to opine whether the inquirer's efforts satisfied the standard; it said the lawyer must exercise ongoing control and take timely corrective action.

Background and rules framework

The opinion applies Washington's supervision rules: RPC 5.1 (responsibilities of partners, managers, and supervisory lawyers), RPC 5.2 (responsibilities of a subordinate lawyer), and RPC 5.3 (responsibilities regarding nonlawyer assistants), corresponding to the same-numbered Model Rules. The committee quoted the substance of RPC 5.3(b) (reasonable efforts to ensure compatible conduct) and RPC 5.3(c) (lawyer responsibility for ratified or unremedied violations), and emphasized that compliance is a fact-dependent question of ongoing control rather than a fixed checklist.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.3 / Washington RPC 5.3 (responsibilities regarding nonlawyer assistants)
• Model Rule 5.1 / Washington RPC 5.1 (responsibilities of partners, managers, and supervisory lawyers)
• Model Rule 5.2 / Washington RPC 5.2 (responsibilities of a subordinate lawyer)

See also

• WSBA Ethics Op. 1116: Collection Agency Pleadings
• WSBA Ethics Op. 1157: Signature Stamp on Trust Checks
• WSBA Ethics Op. 1012: Hiring an Opponent's Secretary

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1259

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 2018
Year Issued: 2003
RPC(s): RPC 5.1, 5.2, 5.3
Subject: supervision of non-lawyer staff

The inquirer heads the legal department of a business. His department represents the business in a large number of garnishments and other lawsuits. It consists of one other lawyer and eight clerks. Various procedures have been set up for the operation of his department to assure that the inquirer or the other lawyer has control over the actions of those employed in the department and of the work the employees produce. The inquirer sets out three different scenarios of additional facts about the operation of the legal department and requests the committee advise if sufficient supervision and control is being provided. In the first scenario, the inquirer describes some procedures for supervision and control of the home office. In the second and third, he describes procedures for supervision and control of legal actions conducted in the foreign office of the business that employs him.

The committee opined that your inquiry is governed by RPC 5.1, 5.2 and 5.3. RPC 5.3(b) requires a lawyer having direct supervisory authority over nonlawyers to make reasonable efforts to ensure that the nonlawyers’ conduct is compatible with the professional obligations of the lawyer. RPC 5.3(c) makes the lawyer responsible for any conduct of the nonlawyers that violates the Rules of Professional Conduct, if the lawyer knows about the conduct and (1) ratifies it, or (2) fails to take remedial action that could avoid or mitigate its consequences.

In each of the three scenarios, the inquirer has set up a system for the training of nonlawyer staff and of various checks and review of their work that puts control of the product of the department into the inquirer’s hands or those of the department’s other lawyer. Because, however, “reasonable efforts” under RPC 5.3 are highly fact dependent and variable, the committee is not in a position to opine whether the inquirer’s efforts satisfy the standard of the rule. In order to satisfy RPC 5.1, 5.2 and 5.3, the inquirer is required to exercise ongoing control to assure that the nonlawyer staff are remaining within the bounds of the RPCs and, if they stray, corrective or remedial action is timely taken.