You’re relatively new to law practice. (Congratulations on your graduation and new job in a pandemic, by the way.) You studied the rules and maybe passed the MPRE. But you’re still learning and your on-the-job training has been, well…the partners are really busy.
Long story short, you messed up, or at least the client thinks you did. They complained to the OLR and now you have to answer an inquiry.
Is your newbie-ness and perhaps not-great advice from your supervisor a defense to the grievance?
Sorry to say, not always. First, all lawyers—on Day 1 or Day 4,363 (that’s me)—are required to comply with the Supreme Court Rules. While inexperience and lack of supervision may be mitigating factors in certain disciplinary outcomes (perhaps a diversion to an educational program may be a good resolution for a new lawyer where it would not be for a 30-year veteran), they are not defenses.
Further, the responsibilities of a subordinate lawyer are spelled out in SCR 20:5.2 (which tracks the Model Rule). The Rule is clear—you are responsible for complying with the Rules even if a supervisor leads you astray. A comment suggests that direction from a manager can still be relevant to Rules that contain a knowledge requirement—if a boss says “here, file this affidavit with your brief,” and you do so not knowing that a client’s signature on the affidavit was forged, you would not be guilty of violating SCR 20:3.3. This is different from “here, file this affidavit with your brief, I went ahead and signed the client’s name for them, they won’t mind”—in that case, you have the knowledge required and you will be in violation. Both you and your supervisor are tasked with complying with a clear rule like this.
An exception, however, arises when the Rule or a proposed course of action may not be all that clear. In that case, someone has to make a decision and typically, that’s the senior attorney. If you take action based on the reasonable advice of your supervisor to resolve a reasonably arguable question, that advice should protect you, even if the action is later challenged.
Whether to throw your supervisor under the bus to save your own skin is outside the scope of this blog entry (may the odds be ever in your favor). I do note that the Supreme Court Rules (and Model Rules) are rules of reason (Preamble at 14), and professional judgment is often called for (Preamble at 9). Disciplinary action should not ordinarily be taken when a lawyer acts reasonably within their discretion. That’s an ideal, of course, and in practice it doesn’t always work that way—a reasonably arguable point to most practitioners may be seen as absolutely clear by regulators and referees.