Ohio Rules of Professional Conduct

Comment - 5.3

[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

[2] Division (a) requires lawyers with managerial authority within a law firm or government agency to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm or government agency will act in a way compatible with the Ohio Rules of Professional Conduct. Division (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Division (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Ohio Rules of Professional Conduct if engaged in by a lawyer.

Comparison to former Ohio Code of Professional Responsibility

There is no Disciplinary Rule comparable to Rule 5.3. DR 4-101(D) and EC 4-2 speak to a lawyer’s obligation in selecting and training secretaries so that a client’s confidences and secrets are protected. The Supreme Court of Ohio cited Model Rule 5.3 with approval as establishing a lawyer’s duty to maintain a system of office procedure that ensures delegated legal duties are completed properly. See Disciplinary Counsel v. Ball (1993), 67 Ohio St.3d 401 and Mahoning Cty. Bar Assn v. Lavelle, 107 Ohio St.3d 92, 2005-Ohio-5976.

Comparison to ABA Model Rules of Professional Conduct

Rule 5.3 is similar to the Model Rule with changes to conform the rule and comments to Rule 5.1.