In re Anonymous Member of SC Bar

• Decision Date: 20 August 2001
• Docket Number: No. 25346.,25346.
• Citation: 552 S.E.2d 10,346 S.C. 177
• Parties: In the Matter of ANONYMOUS MEMBER OF the SOUTH CAROLINA BAR, Respondent.
• Court: South Carolina Supreme Court

346 S.C. 177

552 S.E.2d 10

In the Matter of ANONYMOUS MEMBER OF the SOUTH CAROLINA BAR, Respondent.

No. 25346.

Supreme Court of South Carolina.

Heard June 6, 2000.

Decided August 20, 2001.

PER CURIAM.

As the result of our consideration of an attorney disciplinary matter in which an attorney was charged with commission of misconduct based on alleged discovery abuse, for the benefit of the bar we take this opportunity to address a senior attorney's duty to supervise junior attorneys and attorney conduct in depositions.

I. RULE 407, SCACR, RULE 5.1¹

A. Overview of Rule 5.1

Rule 5.1² governs the responsibilities of partners and lawyers who, directly or indirectly, supervise other lawyers. Attorneys in South Carolina do not have "vicarious liability"³ for the ethical violations of other attorneys. However, vicarious liability is not the issue when a supervised attorney violates the Rules of Professional Conduct. The issue is whether the supervising attorney violated Rule 5.1 by failing to satisfy the ethical responsibilities of a partner or supervisory lawyer in relation to the other supervised attorney's misconduct. If an attorney fails to satisfy the supervisory requirements of Rule 5.1 by actions or omissions, that attorney violates the Rules of Professional Conduct and can be sanctioned completely separate from any sanction issued for the underlying actions or omissions of the supervised attorney.

Rule 5.1 addresses three different levels of supervision. First, under Rule 5.1(c), attorneys will be responsible for another lawyer's violation of the Rules of Professional Conduct if they ratify or fail to mitigate known misconduct committed by an attorney they supervise. Second, under Rule 5.1(b), attorneys with "direct supervisory authority" over another attorney who violates the Rules of Professional Conduct will be disciplined if they failed to "make reasonable efforts" in their supervision. Attorneys can be sanctioned under Rule 5.1(b) even if they had no knowledge of the supervised attorney's inappropriate behavior. Lastly, under Rule 5.1(a), partners in a law firm have a generalized duty to put into place systematic measures to help prevent attorney misconduct.

B. Rule 5.1(c)

Rule 5.1(c)(1) and (2) create a heightened form of liability for attorneys. These sections provide:

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) The lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(Emphasis added). In addition to liability for ordered or ratified misconduct, Rule 5.1(c) requires a law firm partner to take action or face personal liability when the partner discovers another attorney in the firm has engaged in ethical misconduct. Once the partner is on notice of another attorney's misconduct, this subsection imposes a clear duty to take remedial measures to avoid or mitigate the consequences of that behavior. Rule 5.1(c)'s liability is not vicarious liability because the obligation does not arise merely from the relationship between the attorneys. The supervising attorney's ethical violation will be based on his participation in the underlying misconduct or his failure to mitigate it.

C. Rule 5.1(b)

Under Rule 5.1(b), lawyers having "direct supervisory authority over another lawyer" are ethically bound to take "reasonable efforts" to ensure that junior lawyers have conformed to the Rules of Professional Conduct. This subsection provides:

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

As the comment explains, "Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation." Rule 5.1 cmt. Therefore, in these situations, this Court will sanction an attorney not for ordering or ratifying the underlying violation of the Rules of Professional Conduct, but because as a lawyer with "direct supervisory authority over another lawyer" the attorney failed to "make reasonable efforts" to ensure the supervised attorney conformed to the Rules of Professional Conduct.

In order to sanction an attorney under this subsection, this Court must make three separate findings:

(1) The attorney in question was a lawyer with "direct supervisory authority" over the offending attorney;

(2) The supervised attorney failed to conform to the Rules of Professional Conduct;⁴ and (3) The supervising attorney failed to "make reasonable efforts" in an attempt to ensure the supervised attorney followed the Rules of Professional Conduct.

1. Direct Supervisory Authority

A close examination of each case will determine whether an attorney had direct supervisory authority over another. "Whether a lawyer has such supervisory authority in particular circumstances is a question of fact." Rule 5.1 cmt. In the past, this Court has found a violation of Rule 5.1 where a senior attorney handed over the entire discovery process to an associate who then violated the Rules of Professional Conduct. See In the Matter of Moore, 329 S.C. 294, 494 S.E.2d 804 (1997)

. As this case illustrates, Rule 5.1 does not require that an attorney be the day-to-day supervisor of the attorney committing the misconduct to create liability. The key to liability is whether there was authority over the violating attorney.

2. Reasonable Efforts

As noted by the comment to Rule 5.1:

The measures required to fulfill the responsibility prescribed in paragraphs (a) and (b) can depend on the firm's structure and the nature of its practice. In a small firm, informal supervision and occasional admonition ordinarily might be sufficient. In a large firm, or in practice situations in which intensely difficult ethical problems frequently arise, more elaborate procedures may be necessary.

Rule 5.1 cmt. This comment makes clear that a senior attorney in a large firm has an even greater responsibility than an attorney in a smaller practice to enact formal office procedures to ensure compliance with the Rules of Professional conduct. Furthermore, attorneys who attempt to shield themselves from any direct liability under Rule 5.1(c) by distancing themselves from attorneys under their direct supervisory authority may find themselves guilty of a failure to properly supervise under Rule 5.1(b). As stated in the comment to Rule 5.1, "Partners of a private firm have at least indirect responsibility for all work being done by the firm ..." Rule 5.1 cmt. (emphasis added). Again, this section does not establish a vicarious liability standard where supervisory attorneys will be sanctioned every time another attorney violates the Rules of Professional Conduct. Under Rule 5.1(b), supervisory attorneys can employ many different procedures depending on the size of the firm to review the work of their subordinates and effectively meet their responsibilities recognized by Rule 5.1.

D. Rule 5.1(a)

Rule 5.1(a) establishes that all partners in a law firm have a generalized responsibility for the actions of other members in their firm. The rule states:

(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

As mentioned above, all partners in a law firm, no matter the size, have at least indirect responsibility for the work done by the firm. See Rule 5.1 cmt. The liability here is not vicarious liability for the unethical conduct of another attorney, instead this subsection places on all partners a responsibility for enacting measures that give "reasonable assurance" that the firm's attorneys will abide by their ethical responsibilities.

Rule 5.1(a) promotes several goals of the Rules of Professional Conduct. First, by recognizing that senior attorneys have some responsibility for all the work done by their partners and subordinates, senior attorneys in charge are encouraged to construct mechanisms to prevent younger partners and associates from facing an ethical "sink or swim" office mentality. In these unhealthy situations, less experienced lawyers are left alone with little or no guidance from senior attorneys. Senior partners can either establish office procedures to assist new associates when they face ethical questions or they may face sanctions under this subsection. As a New Jersey Supreme Court Justice has noted: "It is not enough that the principals be available if needed. This sorry episode points up the need for a systematic, organized routine for periodic review of a newly admitted attorney's files." In re Barry, 90 N.J. 286, 447 A.2d 923, 926 (1982)(Clifford, J., dissenting).

Furthermore, the rule recognizes that "the ethical atmosphere of a firm can influence the conduct of all its members...." Rule 5.1 cmt. By placing some responsibility on the senior management of a firm, the rule prevents those attorneys who have the most influence over the atmosphere of the firm from turning a blind eye to the behavior of the firm's attorneys. While partners are not required to guarantee that other attorneys in their firm will not violate the Rules of Professional Conduct, ignoring their supervisory responsibilities can lead to sanctions for those running the firm.

Undoubtably, the supervision of attorneys by other attorneys in their firm is one of the most effective methods of preventing attorney misconduct. However, that supervision must be...