Legal Ethics and Accountability
Like most law firms, much use is made of junior lawyers and non-lawyer assistants in the collection and bankruptcy offices. The lawyers with supervisory or management responsibility are accountable under the ethics rules for the conduct of these subordinates. See Model Rules 5.1, 5.2 & 5.3.
Rather than reviewing the requirements of the rules here, we are going to briefly look at how supervising lawyers can perform this supervision. Some of this is obvious. Lawyers in charge of cases supervise the associates, paralegals and secretaries working on the cases. They make sure that there are systems and procedures in place for lawyers to oversee the work of non-lawyers and for senior lawyers to oversee junior lawyers. But that tends to break down when looked at closely. In the collection practice, paralegals often speak with debtors and clients, make strategy decisions, and draft pleadings. Many lawyers rely heavily on these staff members. Today, with many jurisdictions permitting filing electronically, secretaries and paralegals are delegated the use of attorney logins to file documents. It can become very routine and, in some cases, lawyers “instruct” staff generally to take certain steps at certain times (e.g. enter default judgment x days after service) and the lawyer may never actually look at the filing or be asked for specific permission to file.[related]
There may be great trust in these staff members, but filing a document electronically using a username and password is generally tantamount to signing the document. Most lawyers would not permit a staffer to sign the lawyers name to a pleading to be filed (especially when the lawyer didn’t actually review it), but some lawyers made be effectively doing that by delegating the ability to file electronically. Lawyers and office management staff need to be careful of tripping over this convenience. Not only will you be stuck with the document that you permitted to be filed, but if it harms a client (or otherwise violates an ethics rule), you can’t escape accountability by claiming that you didn’t know.
The other aspect that we should all be considering is how we train (and keep training) our junior staff. Best practices dictate a training regimen, even for experienced lawyers and staff, if only to make sure that they know our systems and procedures. Less experienced people need closer and longer supervision. New lawyers need active mentoring to help them develop and grow as professionals and as people. Younger folks must look to the more mature, experienced lawyers to help them understand the best ways to serve clients, comply with rules, and make a living.
Those more mature, experienced lawyers must be willing to spend time coaching, questioning, answering and giving feedback. Not only is that a good way to help lawyers (and others) develop, but it is also a good way to make sure we are compliant with our ethics responsibilities.
Please comment or suggest issues and topics below. See you next time.
Robert S. Bernstein, of Pennsylvania, is a Past President of the CLLA, Past Chair of the American Board of Certification and regularly tries to pay attention to issues of ethics and professionalism in the worlds of credit, collections and bankruptcy, while practicing law at Bernstein-Burkley, P.C. – www.bernsteinlaw.com.
*This article appears in the April/May/June/July 2014 issue of Commercial Law World magazine, a publication by the Commercial Law League of America.