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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

5.2 RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER

5.2:100 Comparative Analysis of Ohio Rule

5.2:101 Model Rule Comparison

With one exception, Ohio Rule 5.2 is identical to MR 5.2; the word "arguable" has been deleted from division (b).

5.2:102 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 5.2: None.

5.2:200 Independent Responsibility of a Subordinate Lawyer

  • Primary Ohio Reference: Ohio Rule 5.2(a)
  • Background References: ABA Model Rule 5.2(a)
  • Commentary: ABA/BNA § 91:104; ALI-LGL § 12(1)

Ohio Rule 5.2(a) provides that every lawyer is individually responsible for complying with the Ohio Rules, even if the lawyer was acting at the direction of another. Nevertheless, as noted in Comment [1] (identical to the Model Rule comment), the fact that she acted at the direction of a supervising lawyer "may be relevant on determining whether [the subordinate] had the knowledge required to render conduct a violation of the Rules." The example given is that of filing a frivolous pleading as instructed; there would be no liability unless the subordinate knew it was frivolous. Ohio Rule 5.2 cmt. [1].

To our knowledge, no Ohio decisions or ethics opinions under the former OHCPR dealt with the subject of the responsibilities of a subordinate lawyer, as the topic was not addressed in the OHCPR. Ohio Code Comparison to Rule 5.2.

Inasmuch as Ohio Rule 5.2(a) is identical to the Model Rule, for further guidance on this issue we direct the reader to the commentary on MR 5.2(a) in ABA, Annotated Model Rules of Professional Conduct 429-31 (6th ed. 2007); see also 1 Restatement (Third) of the Law Governing Lawyers § 12(1) & cmt. b & reporter's note thereto, at 115, 116, 117 (2000).

5.2:300 Reliance on a Supervisory's Resolution of Ethical Issues

  • Primary Ohio References: Ohio Rule 5.2(b)
  • Background References: ABA Model Rule 5.2(b)
  • Commentary: ABA/BNA § 91:104; ALI-LGL § 12(2)

Under Ohio Rule 5.2(b), a subordinate is not in violation of the ethics rules if she acts in accordance with a supervisory lawyer's "reasonable resolution of a question of professional duty." However, if the question can reasonably be answered only one way, the duty of both subordinate and supervisor is clear, and both "are equally responsible for fulfilling it." Rule 5.2 cmt. [2].

As the Task Force notes in its ABA Model Rules Comparison, the text of 5.2(b) was changed by striking the word "arguable" before "question." The Task Force further notes that the wording of Model Rule comment [2] has been "altered to clarify the duty of a supervisory attorney to resolve close calls." Thus, the language "if the question is reasonably arguable" has been changed to "if the resolution is unclear."

Once again, there are no known Ohio decisions on point. For discussion of the MR 5.2(b) proposition that a subordinate lawyer does not violate the ethics rules if she acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty, see ABA, Annotated Model Rules of Professional Conduct 429-31 (6th ed. 2007) (commentary). See also 1 Restatement (Third) of the Law Governing Lawyers § 12(2) cmt. c & reporter's note thereto, at 115-16, 116-17, 117-18 (2000). Laws. Man. on Prof. Conduct (ABA/BNA) § 91:104 (1999) cautions that "this provision [MR 5.2(b)] has been narrowly construed."