skip navigation
search

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Ohio Legal Ethics Narrative

v. law firms and associations

5.1 RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

5.1:100 Comparative Analysis of Ohio Rule

  • Primary Ohio References: Ohio Rule 5.1 cmts. [2] & [3]
  • Background References: ABA Model Rule 5.1

5.1:101 Model Rule Comparison

Ohio Rule 5.1 differs substantially from the Model Rule. MR 5.1(a) and (b) have not been adopted in Ohio, although the requirements they impose remain as aspirational goals in the Ohio comments. MR 5.1(c) is adopted in Ohio, along with language making it clear that the provision applies to lawyers in a government agency as well as those in a law firm.

5.1:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 5.1: None.

5.1:200 Duty of Partners to Monitor Compliance with Professional Rules

  • Primary Ohio References: Ohio Rule 5.1(a)
  • Background References: ABA Model Rule 5.1(a)
  • Commentary: ABA/BNA § 91:103; ALI-LGL § 11(1); Wolfram § 16.2.2

Although MR 5.1(a) was not adopted in Ohio, the comments contain comparable language, urging that a law firm partner or other lawyer who has similar managerial authority in a law firm "should make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Ohio Rules of Professional Conduct." Ohio Rule 5.1 cmt. [2]. While failure to do so is therefore not a disciplinary violation, implementing measures that help assure compliance with the professional responsibility rules is nevertheless a practice to be encouraged. Comment 2 also catalogs the sort of measures that might be taken, which include

those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised.

Id. Noting that the measures necessary to meet this goal can depend on the firm's structure and nature of its practice, Comment [3] contrasts "a small firm of experienced lawyers," where informal supervision and periodic review will ordinarily be sufficient, with "a large firm, or in practice situations in which difficult ethical problems frequently arise," where more elaborate controls may be necessary. Ohio Rule 5.1 cmt. [3].

This admonition applies in both law firm and government settings.

See generally 1 Restatement (Third) of the Law Governing Lawyers § 11(1) & cmt. c (2000).

5.1:300 Monitoring Duty of Supervising Lawyer

  • Primary Ohio References: None
  • Background References: ABA Model Rule 5.1(b)
  • Commentary: ABA/BNA § 91:103; ALI-LGL § 11(2); Wolfram § 16.2.2

Ohio did not adopt an equivalent to Model Rule 5.1(b), which provides that a lawyer with direct supervisory authority over the work of another lawyer in a firm must make reasonable efforts to ensure that the subordinate lawyer conforms to the professional conduct rules.

5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer

  • Primary Ohio References: Ohio Rule 5.1(c)
  • Background References: ABA Model Rule 5.1(c)
  • Commentary: ABA/BNA § 91:103; ALI-LGL § 11(3)(b); Wolfram § 16.2.2

Ohio Rule 5.1(c) makes a lawyer responsible for the acts of another lawyer if: (1) the lawyer (any lawyer, not just partners, managers, or supervisors, see ABA, Annotated Model Rules of Professional Conduct 427 (6th ed. 2007) (commentary), orders or knowingly ratifies those acts, or (2) the lawyer (a) is a partner or has comparable managerial authority in a firm or government agency in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and (b) knows of the conduct in question when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Id. Accord 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 42.6, at 42-8 (3d ed. 2001). This provision "expresses a general principle of personal responsibility for acts of another," Ohio Rule 5.1 cmt. [4]; apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of another partner, associate, or subordinate. Ohio Rule 5.1 cmt. [7].

In elaborating on the duty imposed on partners, managers, and direct supervisors by division (c)(2), Comment [5] (identical to MR 5.1 cmt. [5]) is less clear than it might be. After stating that "[w]hether a lawyer has supervisory authority in particular circumstances is a question of fact," it provides as follows:

Lawyers with managerial authority have at least indirect responsibility for all work being done by the firm or government agency, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm or government agency lawyers engaged in the matter. Appropriate remedial action by a partner or managing partner would depend on the immediacy of that lawyer's involvement and the seriousness of the misconduct. A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.

Rule 5.1 cmt. [5].

There are two problems: First, the comment language indicates that appropriate remedial action by a partner or managing lawyer depends on immediacy of involvement and the seriousness of the misconduct; no mention is made of knowledge, in contrast to the response of a supervisor, who is "required to intervene" if the supervisor has knowledge of the misconduct. By all authoritative readings, however, the (c)(2) duty to act is imposed only if a lawyer in any of the above categories of lawyers has knowledge. A second, and related, difficulty is that because the focus is on knowledge of a supervisor, perhaps the (c)(2) duty applies to partners and managers only if they are supervisors as well. Hazard and Hodes argue convincingly to the contrary:

The Comment can be read to mean that this duty to rectify does not rest upon partners [and managers] unless they are in a direct supervisory relationship with the subordinate lawyer. That interpretation is incorrect, however, for Rule 5.1(c)(2) applies independently to partners or supervisors. The rule will not apply unless the uninvolved partner knows of the misconduct, but once he has such knowledge he is in a position to act and is required to do so. The seriousness of the violation and the partner's proximity to its occurrence determine the reasonableness of his response.

2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 42.6, at 42-8 (3d ed. 2001) (emphasis in original). Accord ABA, Annotated Model Rules of Professional Conduct 428 (6th ed. 2007) (commentary) (partners, managers, and direct supervisors may be held responsible "merely by having knowledge of it"); 1 Restatement (Third) of the Law Governing Lawyers § 11(3)(b) & cmt. e (2000) (same).

A further remark is in order with respect to Ohio Rule 5.1(c). As Hazard and Hodes state:

Model Rule 5.1(c)(1) [identical to the Ohio Rule] states a rule of accessorial liability, not vicarious responsibility. A lawyer who orders or ratifies the misconduct of another has assisted it . . . .

Subsection (c)(2) goes a step beyond these traditional principles of accessorial liability. It imposes a duty upon partners and supervisory lawyers to rectify the harm caused by a subordinate lawyer if there is still an opportunity to do so. Since remedial action can be taken only if the violation is discovered in time, the Rule is limited to situations where the supervisory lawyer knows about the misconduct but fails to take corrective action.

2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 42.6, at 42-7 to -8 (3d ed. 2001) (emphasis in original; bracketed material added). Accord 1 Restatement (Third) of the Law Governing Laywers § 11 cmt e (2000) (noting accessorial liability with respect to § 11(3)(a), the Restatement analog to Ohio Rule (and MR) 5.1(c)(1). See ABA, Annotated Model Rules of Professional Conduct 425 (6th ed. 2007) (commentary) (the Rule "establishes the principle of supervisory responsibility without introducing vicarious liability").

5.1:500 Vicarious Liability of Partners

  • Primary Ohio References: Ohio Rule 5.1; Gov Bar R III
  • Background References: ABA Model Rule 5.1
  • Commentary: ABA/BNA § 91:105; ALI-LGL § 58; Wolfram § 5.6.6

The leading case in Ohio on "vicarious" liability of lawyers in the ethics context is Cincinnati Bar Ass'n v. Schultz, 71 Ohio St.3d 383, 643 N.E.2d 1139 (1994), in which the Court held

the majority shareholder of a legal professional association vicariously responsible for the disciplinary offenses of attorneys employed by the association . . . .

Id. at 386, 643 N.E.2d at 1141. The Supreme Court found this determination "specifically authorized" by the then-applicable language of Gov Bar R III 3(C), which stated that a breach of the former OHCPR by a legal professional association "shall be considered a breach upon the part of the individual participating in the breach and the shareholder, director, and officer having knowledge of the breach." (Emphasis added.) In the words of the Court:

The misconduct committed in the case resulted either from policies imposed by [the firm's] majority shareholder or from her specific instruction.

Id. Accord Columbus Bar Ass'n v. Winkfield, 75 Ohio St.3d 527, 664 N.E.2d 902 (1996) (decided under the same version of the Governing Bar Rule):

Respondent learned of Brooks's [with whom he practiced as a professional association] failure to return [the client's] overpayment . . . and is accountable pursuant to Gov. Bar R. III(3)(B) and (C)."

Id. at 529, 664 N.E.2d at 904. Given the knowledge factor there set forth, this was not "pure" vicarious liability. In any event, the Governing Bar Rules no longer impose vicarious disciplinary liability on lawyers, and, as Ohio Rule 5.1 cmt. [7] makes clear, a lawyer does not have vicarious disciplinary liability under the OHRPC, other than in situations governed by Rules 5.1 and 8.4(a).

A related issue is the extent to which associated lawyers are vicariously liable for civil wrongs done by other lawyers in the group. Gov Bar R III 4(B) renders "[e]ach member, partner, or other equity holder of a legal professional association, corporation, legal clinic, limited liability company, or registered partnership" jointly and severally liable for any liability of the firm based on acts or omissions in rendering of legal services, "in an amount not to exceed the aggregate of both of the following:" (1) if the firm does not have the per-claim professional liability insurance required by the Rule (at least $ 50,000 per claim multiplied by the number of attorneys practicing with the firm up to a ceiling of five million dollars in excess of any deductible, see Gov Bar R III 4(A)(1)), then this per-claim multiple applicable to the firm is operative, plus (2) the deductible amount of the insurance applicable to the claim. This member liability is reduced to the extent the liability is satisfied by the assets of the firm. Gov Bar R III 4(B). To our knowledge, there are no cases or opinions applying the current version of the Rule, which went into effect on November 1, 1995.

At least one Ohio case, involving assertion of a claim of vicarious civil liability against a lawyer, disallowed the claim on the facts presented. See Landis v. Hunt, 80 Ohio App.3d 662, 610 N.E.2d 554 (Franklin 1992) (rejecting assertion that liability could be predicated on vicarious liability where defendant lawyer was neither a partner nor a joint venturer with client's lawyer). Two other cases dealing with vicarious civil liability were decided under a version of Gov Bar R III 4 that no longer exists: see South High Dev., Ltd. v. Weiner, Lippe & Cromley Co., L.P.A., 4 Ohio St.3d 1, 445 N.E.2d 1106 (1983) (then-applicable GBR stated that a shareholder in a legal professional association guarantees the financial responsibility of the association for its breach of any duty, whether or not arising from the attorney/client relationship); Riener v. Kelley, 8 Ohio App.3d 390, 457 N.E.2d 946 (Franklin 1983) (same).

The Restatement rule on the vicarious civil liability of law firms, of principals in general partnerships without limited liability, and principals in other forms of law-firm organization is set forth in 1 Restatement (Third) of the Law Governing Lawyers § 58 (2000).