While competent attorneys take steps to comply with the Rules of Professional Conduct, they sometimes forget that employees can get them into trouble by violating the rules. While the California State Bar likely won’t discipline nonattorneys who violate the Rules of Professional Conduct, lawyers who supervise violators can be disciplined for those violations.
New Rule 5.3 requires lawyers to make sure all people who work for the lawyer (i.e., employees, independent contractors, investigators, interns, etc.) comply with the Rules of Professional Conduct. Lawyers are prohibited from asking nonlawyers to engage in activity prohibited by the attorney. For instance, an attorney cannot ask an investigator to interview a party that the lawyer knows is represented by counsel because that conduct violates rule 4.2. Lawyers are required to have measures in place to assure that everyone working for the lawyer follows the rules.
When hiring a new staff members, talk to them about the basic rules of confidentiality and prohibition of nonlawyers giving clients legal advice. Regularly talk to employees about rules that affect their job description (e.g., the firm’s administrator must know how to handle client trust funds). Employees like knowing there are ethical rules that govern our profession and that the lawyers in the firm take those rules seriously.
Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2018 SuperLawyers Top 50 Orange County list. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law.