Schooled in Ethics

SCHOOLED IN ETHICS By: Judy M. Cornett

UT College of Law

DETRIMENTAL RELIANCE? CAN A SUBORDINATE LAWYER SIGN A COMPLAINT BASED SOLELY ON A SUPERVISING LAWYER’S INSTRUCTION?

If you missed the 2022 edition of the Ethics Bowl last December, you missed a lively and informative program. One of the liveliest exchanges came in response to the following question: Lawyer Malia is a new associate working under the direct supervision of Lawyer Estelle. Lawyer Estelle presents a Complaint to Malia and instructs her to sign it as second counsel. Malia has not read the Complaint, nor does she know anything about the client or the facts. Unbeknownst to Malia, the Complaint is frivolous. If Malia signs the Complaint, will she violate the Tennessee Rules of Professional Conduct?

A. No, because she acted at the direction of her supervisor and did not know that the Complaint was frivolous.

B. No, because filing a frivolous Complaint does not violate any Rule of Professional Conduct.

C. Yes, because Malia has an independent professional duty to ensure that the Complaint is not frivolous.

D. Yes, although she is not subject to discipline.

The majority of the audience thought the correct answer was “C” because every lawyer has an independent professional duty to ensure that pleadings filed under their signature are not frivolous. However, the correct answer was “A.” Here is the explanation for that answer: Comment [1] to Tennessee RPC 5.2 provides: “Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules.

For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the

document’s frivolous character.” However, Malia may have violated Tennessee Rule of Civil Procedure 11.02(2), which provides that an attorney who signs a pleading is certifying that “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, -- the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . .” (emphasis added) As noted, the comment to Rule 5.2 fails to consider the effect of Tennessee Rule of Civil Procedure 11, which imposes on every lawyer signing or submitting a pleading a duty of certification after “an inquiry reasonable under the circumstances.”

The comment to Rule 5.2 also ignores Tennessee Rule of Professional Conduct 3.1, which provides: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis in law and fact for doing so that is not frivolous . . . .” (emphasis added). Comment [2] to Rule 3.1 emphasizes what the lawyer is required to do: The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required

of lawyers, however, is that they act reasonably to inform themselves about the facts of their client’s case and the law applicable to the case and then act reasonably in determining that they can make good faith arguments in support of their

client’s position. (emphasis added)

This disconnect illustrates the dilemma facing junior lawyers when they are asked (or directed) to perform some task by their supervisors. Can these subordinate lawyers perform the task in reliance on their supervisors’ instructions, or must they use their independent professional judgment to determine whether the task is ethical? If they do not obey their supervisors’ instructions, and instead insist on making their own independent evaluation of the situation, don’t they run the risk of being fired? Or, at least, of being labelled a problem lawyer?

Rule 5.2, and particularly Comment [1], attempts to take into account the reality of the relationship between supervising and subordinate lawyers, in which supervisors frequently enlist junior lawyers to assist with cases that the subordinate lawyers have not been fully involved in. For the subordinate lawyer to “inform themselves about the facts of their client’s case and the law applicable to the case” would often require more time and effort than the case will allow, especially if a statute of limitations is running. Still, the exigencies of law practice do not nullify the professional responsibilities of either subordinate or supervising lawyers.

So what’s the lesson from this lively exchange at Ethics Bowl 2022? Supervising lawyers need to realize that their instructions to subordinate lawyers may put the junior lawyer in an ethical bind. When enlisting the help of junior lawyers, supervisors should give them time to fulfill their ethical duties of reasonable inquiry into the law and facts. Subordinate attorneys might remind supervisors that they (the subordinates) have an independent professional obligation to make a reasonable inquiry into the facts and the law. Depending on the circumstances, the subordinate’s independent professional judgment might counsel against following the instructions of the supervisor. If that happens, the supervisor could be offended or angry, or the supervisor could be grateful to have a colleague who strives to act ethically. The Ethics Bowl participants hope you know which choice to make.