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Ohio Legal Ethics Narrative
v. law firms and associations
Ohio Rule 5.3 is substantively similar to the Model Rule; the differences are as follows:
In division (a), the beginning words "a partner and" have been deleted; "comparable" has been deleted prior to "managerial"; "or governmental agency" has been added after "law firm" and after "the firm".
In subdivision (c)(2), the words "is a partner or" have been deleted after the beginning words "the lawyer"; "comparable" has been deleted prior to "managerial"; and "or government agency" has been added after "law firm".
The following are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 5.3: DR 4-101(D), EC 4-2, Disciplinary Counsel v. Ball (1993), 67 Ohio St.3d 401 & Mahoning County Bar Ass'n v. Lavelle (2005), 107 Ohio St.3d 92.
- Primary Ohio References: Ohio Rules 5.3(a)
- Background References: ABA Model Rule 5.3(a)
- Commentary: ABA/BNA § 91:205; ALI-LGL § 11(4); Wolfram § 16.3
Lawyers often are assisted in the practice of law by nonlawyers, serving in such roles as secretaries, paralegals, and law clerks. Ohio Rule 5.3(a) provides that a lawyer who individually or with others has managerial authority in a law firm or government agency "shall" make "reasonable efforts" to ensure the firm or agency has measures providing "reasonable assurance" that the conduct of a nonlawyer employed by, retained by, or associated with a lawyer "is compatible with the professional obligations of the lawyer." As reiterated in Comment , 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 governmental agency will act in a way compatible with the Ohio Rules of Professional Conduct.
Prior to the adoption of the Ohio Rules, both the Supreme Court and the Board of Commissioners had cited MR 5.3(a) (as well as MR 5.3(b)) with approval. In Office of Disciplinary Counsel v. Ball, 67 Ohio St.3d 401, 618 N.E.2d 159 (1993), the Court rejected respondent's argument (premised on the language of MR 5.3(c)) that a lawyer's responsibility under MR 5.3 was limited to situations in which the lawyer ordered, ratified, or failed to take remedial action upon learning of the employee's wrongful act. In doing so, Chief Justice Moyer quoted both MR 5.3(a) and (b) (similar in substance to Ohio Rule 5.3(a) and identical to (b)) in support of the conclusion that respondent's conduct (described in sections 5.3:300 & :400 below) failed to pass muster under either Model Rule provision:
In fact, Model Rules 5.3(a) and (b) clearly indicate that it is a lawyer's duty to establish a system of office procedure that ensures delegated legal duties are completed properly . . . .
67 Ohio St.3d at 404, 618 N.E.2d at 162. In Bd. of Comm'rs on Grievances & Discipline Op. 91-9, 1991 Ohio Griev. Discip. LEXIS 21 (Apr. 12, 1991), the Board quoted both subsections in the course of opining that it was proper for lawyers who maintained separate practices to share nonlawyer personnel, such as a common secretary, provided that each attorney exercises reasonable care to ensure that the employee or employees did not disclose or use client confidences or secrets, as reflected in former OH DR 4-101(D). The opinion also referred to the advice in the comment to MR 5.3 to the effect that a lawyer "should give instructions and supervision to assistants regarding the ethical aspects of employment, particularly the obligation not to disclose information relating to representation of the client." Id. at *6. (In the 2002 amendments, the ABA changed "should" to "must," MR 5.3 cmt. ; the mandatory language is likewise incorporated in Ohio Rule 5.3 cmt. .)
And in Lorain County Bar Ass'n v. Noll, 105 Ohio St.3d 6, 2004 Ohio 7013, 821 N.E.2d 988, at ¶¶ 17-21, the comparable provisions of 1 Restatement (Third) of The Law Governing Lawyers § 11(4) (2000), requiring the existence of reasonable safeguards concerning conduct of nonlawyer employees, were invoked by the Court, which also repeated the language from Ball that "it is the lawyer's duty to establish a system of office procedure that ensures delegated legal duties are completed properly." 105 Ohio St.3d 6, 821 N.E.2d 988, at ¶ 16. The Court in Noll concluded that "[w]hatever safeguards respondent may have established to ensure that [his employee] performed her assigned duties properly were clearly inadequate." Id. Accord Mahoning County Bar Ass'n v. Lavelle, 107 Ohio St.3d 92, 2005 Ohio 5976, 836 N.E.2d 1214 (citing Ball, Noll, MR 5.3, and Restatement § 11; violation of OH DR 1-102(A)(5) & (6); respondent "at best chose to remain oblivious to the improper actions [altering documents; false notarizations] of the persons he hired, thereby violating the trust that his clients and other placed in him and his office staff," id. at ¶ 29).
- Primary Ohio References: Ohio Rules 5.3(b)
- Background References: ABA Model Rule 5.3(b)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 6.14
- Commentary: ABA/BNA § 91:205; ALI-LGL § 11(4); Wolfram § 16.3
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 6.14 (1996).
Ohio Rule 5.3(b) obligates a supervising lawyer to make "reasonable efforts" to ensure that a nonlawyer's conduct comports with the professional obligations of the lawyer.
In a 1993 opinion, termed a case of first impression, the Ohio Supreme Court held under the former OHCPR that failure to provide adequate supervision of a nonlawyer employee could constitute "neglect" under OH DR 6-101(A)(3). Office of Disciplinary Counsel v. Ball, 67 Ohio St.3d 401, 618 N.E.2d 159 (1993). In Ball, the lawyer's "lack of any semblance of supervisory control" over the work of a legal secretary/bookkeeper over a ten-year period, which resulted in the employee's misappropriation of funds from various client estate and guardianship accounts, and related account-filing delinquencies, was found to constitute neglect on the lawyer's part. Id. at 405, 618 N.E.2d at 162. See Cuyahoga County Bar Ass'n v. Boychuck, 79 Ohio St.3d 93, 679 N.E.2d 1081 (1997) ("[r]espondent admitted to not supervising her office properly"; violation, inter alia, of former OH DR 6-101(A)(3)); cf. Duggins v. Steak 'N Shake, Inc., 195 F.3d 828 (6th Cir. 1999)(allegations of law firm's failure to properly supervise actions of nonlawyer "investigator"; court recommended that on remand, district court refer such allegations to Ohio State Bar Association). The Rule 5.3 duties apply with respect to all nonlawyers assisting the lawyer in the rendition of legal services, whether they are employees of the lawyer or independent contractors. See Rule 5.3 cmt. . See also Carol K. Metz, Do You Know What Your PI Is Doing?, Cleve. B.J., Apr. 2007, at 14, 15 (discussing lawyer's obligations under Rules 4.4 and 5.3 regarding private investigators).
As previously noted in section 5.3:200, the Ball Court placed substantial reliance on the provisions of the ABA Model Rules of Professional Conduct pertaining to the lawyer's duty to supervise nonlawyer employees (MR 5.3(a) and (b)), even though the OHCPR did not contain comparable provisions. Ball therefore provides a good indication of how the Court will treat these provisions under Ohio Rule 5.3.
More recent OHCPR disciplinary cases dealing with inadequate-supervision issues are Disciplinary Counsel v. Young, 113 Ohio St.3d 36, 2007 Ohio 975, 862 N.E.2d 504; Mahoning County Bar Ass'n v. Lavelle, 107 Ohio St.3d 92, 2005 Ohio 5976, 836 N.E.2d 1214; and Lorain County Bar Ass'n v. Noll, 105 Ohio St.3d 6, 2004 Ohio 7013, 821 N.E.2d 988. In both Lavelle and Noll the Court quoted from 1 Restatement (Third) of the Law Governing Lawyers § 11(4) (2000), including the language emphasizing that there is no exception to the lawyer's duty to supervise based on lack of awareness of the employee's misconduct: Being busy or otherwise distracted by other important work "does not excuse neglecting supervisory responsibilities or ignoring inappropriate conduct on the part of the supervised nonlawyer." (quoting from Restatement § 11 cmt f). The Lavelle Court also invoked MR 5.3. As a result, Lavelle "at best chose to remain oblivious to the improper actions [including forging the lawyer's signature, altering documents, and falsely notarizing them] of the persons he hired," thereby violating OH DR 1-102(A)(5) & (6). 107 Ohio St.3d 92, 836 N.E.2d 1214, at ¶ 29. Similarly, Noll's obliviousness to his assistant's "shoddy work, and his inattentive and inadequate oversight" violated 102(A)(6). 105 Ohio St.3d 6, 821 N.E.2d 988, at ¶¶ 24-25. In Young, the Court emphasized that "[p]art of a lawyer's obligation to his client is to ensure that delegated legal duties are completed properly. [citing Ball]. Because respondent failed to supervise his secretary, disciplinary measures are warranted. [citing Lavelle]." 113 Ohio St.3d 36, 862 N.E.2d 504, at ¶ 27.
- Primary Ohio References: Ohio Rule 5.3(c)
- Background References: ABA Model Rule 5.3(c)
- Commentary: ABA/BNA § 91:205; ALI-LGL § 11(4); Wolfram § 16.3
In addition to the obligations imposed by Ohio Rules 5.3(a) and (b), division (c) makes the lawyer liable for nonlawyer conduct that would violate the ethics rules if engaged in by a lawyer, if the lawyer either (1) orders or knowingly ratifies the conduct or (2) has managerial authority in a law firm or governmental agency or has direct supervisory authority over the nonlawyer and fails to take remedial action, while knowing of the conduct at a time when its consequences could be avoided or mitigated.
Although there was no OHCPR counterpart to Ohio Rule 5.3(c), the few Ohio cases dealing with discipline for supervisory failures made it clear that the lawyer was responsible in a disciplinary proceeding for the misconduct of nonlawyer assistants. Whether invoking former OH DR 1-102(A)(5) and/or (6), 6-101(A)(3), or 9-102(B), the Supreme Court found lawyers in violation of the OHCPR for failure to prevent or correct employee misdeeds. E.g., Disciplinary Counsel v. Maley, 119 Ohio St.3d 217, 2008 Ohio 3923, 893 N.E.2d 180; Mahoning Bar Ass'n v. Lavelle, 107 Ohio St.3d 92, 2005 Ohio 5976, 836 N.E.2d 1214 (OH DR 1-102(A)(5) & (6), 6-101(A)(3)); Lorain County Bar Ass'n v. Noll, 105 Ohio St.3d 6, 2004 Ohio 7013, 821 N.E.2d 988 (DR 1-102(A)(6)); Cuyahoga County Bar Ass'n v. Boychuck, 79 Ohio St.3d 93, 679 N.E.2d 1081 (1997) (DR 6-101(A)(3)); Office of Disciplinary Counsel v. Kick, 28 Ohio St.3d 91, 502 N.E.2d 640 (1986) (DR 9-102(B)). As the Court stated in Noll:
Respondent continued to employ his assistant long after he knew or should have known that her handling of his mail, telephone messages, calendar, and client files was damaging his law practice and jeopardizing the rights and interests of his clients. The board therefore rightly found that respondent's misconduct violated DR 1-102(A)(6) . . . .
Id. at ¶ 25. (The ethical waters were further muddied in the Noll and Kick cases by the lawyer's sexual involvement with the employee whose work the lawyer had failed to monitor.)
Moreover, at least one statement by the Board of Commissioners on Grievances and Discipline referred to MR 5.3(c) with seeming approval in the course of noting the obligations imposed by MR 5.3(a) and (b). See Bd. of Comm'rs on Grievances & Discipline Op. 91-9, Ohio Griev. Discip. LEXIS 21, at *6 (Apr. 12, 1991) ("The rule also deems a lawyer responsible for the conduct of the non-lawyer assistant under certain conditions. Model Rule 5.3(c).").
Perhaps the most intriguing pre-Rule reference to the concept of lawyer responsibility for nonlawyer/assistant conduct came in Office of Disciplinary Counsel v. Ball, 67 Ohio St.3d 401, 618 N.E.2d 159 (1993). In Ball, the respondent had a trusted nonlawyer employee who misappropriated more than $200,000 from client accounts over the course of ten years. As put by the Supreme Court, the "case at bar concerns the vicarious responsibility of a lawyer for the conduct of a nonlawyer employee and is of first impression in this state." Id. at 403, 618 N.E.2d at 161. Invoking MR 5.3(c) (and MR 5.1(c)), respondent argued that
a lawyer's vicarious responsibility in a disciplinary proceeding is limited to those situations where the lawyer orders or with knowledge ratifies, or fails to take reasonable remedial action upon learning of, the employee's wrongful acts.
Id. at 404, 618 N.E.2d at 161 (emphasis by the Court). The Supreme Court, in a 5-2 opinion authored by Chief Justice Moyer, was not persuaded:
The Model Rules do not condone respondent's conduct. In fact, Model Rules 5.3 (a) and (b) clearly indicate that it is a lawyer's duty to establish a system of office procedure that ensures delegated legal duties are completed properly: [quoting MR 5.3(a) and (b)].
Id., 618 N.E.2d at 161-62. Thus, in the view of the Ball Court, a lawyer's responsibility for conduct of nonlawyers under the circumstances stated in MR 5.3(c) is in addition to the obligations imposed directly upon various categories of lawyers (partners, supervisors) by MR 5.3(a) and (b). The Supreme Court concluded that under the OHCPR, since there was a "lack of any semblance of supervisory control over the work delegated by respondent to [the employee, this] constitutes neglect . . . in violation of DR 6-101(A)(3)." Id. at 405, 618 N.E.2d at 162 (bracketed material added).
Did the Ball result and analysis place a broader disciplinary responsibility on an Ohio lawyer with respect to nonlawyer employee misconduct than that contained in MR 5.3, and now Ohio Rule 5.3, despite the absence then of any Ohio disciplinary rule speaking directly to the subject? We think not. The argument premised on MR 5.3(c) made by the respondent in Ball is an interesting one, primarily because of the way MR 5.3 is written. (MR 5.1 follows the same structure.) The only subsection of the Model Rule referring directly to "responsib[ility] for conduct" of a nonlawyer is subsection (c), which deals with ordering or ratifying such conduct (MR 5.3(c)(1)), or having knowledge of the conduct but failing to take remedial action when its consequences could be avoided or mitigated (MR 5.3(c)(2)). MR 5.3 (a) and (b) lay down duties to make reasonable efforts to erect safeguards and to supervise, but these duties are not stated in terms of affirmative professional responsibility resulting from failure to fulfill these duties. Compare 1 Restatement (Third) of the Law Governing Lawyers § 11(4) (2000), which follows the MR 5.3 outline, but expressly states that a lawyer "is subject to professional discipline" for a failure to comply with each of the duties imposed. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering §§ 42.3, at 42-5 & § 44.3, at 44-4.1 (3d ed. 2001 & Supp. & 2004-2) (noting contrast between MR 5.1/5.3 and Restatement § 11 formulations in this regard).
Despite the manner in which the text of MR 5.3 is written, there can be little doubt that a lawyer's failure to comply with any of the paragraphs (a), (b), or (c) can result in professional discipline. See ABA, Annotated Model Rules of Professional Conduct 435-38 (6th ed. 2007) (commentary), and the cases there cited, including In re Farmer, 950 P.2d 713 (Kan. 1997) (admitted violation of MR 5.3(a) & (b); this and other violations resulted in indefinite suspension); In re Cartmel, 676 N.E.2d 1047 (Ind. 1997) (failure to supervise legal assistant violated MR 5.3(b); sixty-day suspension imposed). Thus, it would appear that Chief Justice Moyer's reading of MR 5.3 in Ball was the correct one, even though, as a technical matter, the duties imposed by MR 5.3(a) and (b) are accessorial, not vicarious.
The result under Ohio Rule 5.3 should be no different, inasmuch as (1) the language of the two versions is substantively identical for these purposes and (2) the Task Force cites the Ball decision with approval in its commentary. Thus, the elements required for liability under Ohio Rule 5.3(c) (the lawyer orders the violative conduct, or with knowledge ratifies it, division (c)(1), or the lawyer has managerial authority in the firm (or government agency), or has direct supervisory authority over the nonlawyer, and has knowledge of the conduct at a time when the consequences of the conduct can be avoided or mitigated, but fails to act, division (c)(2)) are, like the obligations imposed by divisions (a) and (b), independent bases for liability ("all" of the following [i.e., divisions (a), (b), and (c)] apply"). Accordingly, the 5.3(c) requisites need not be present for a violation of either Rule 5.3(a) or 5.3(b).
An interesting and potentially troubling case that raises questions about the interrelationship of the subparts of Rule 5.3 is Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749. In Lawson, the Court found that respondent had violated Rule 5.3(a) and (b) for authorizing employees to pay office expenses from his client trust account. According to the Court,
[v]iolations of Prof. Cond. R 5.3(a) and (b) occur when (1) a lawyer orders an assistant to perform an act incompatible with professional obligations or knowingly ratifies such conduct, or (2) a lawyer having managerial or supervisory authority knows of conduct that is incompatible with professional obligations and could, but fails to, take reasonable remedial action.
Id. at para. 40. This language, of course, is taken almost verbatim from Rule 5.3(c)(1) & (2). Why this produced a Rule 5.3(a) and (b) violation, rather than a violation of 5.3(c), is nowhere explained. And, it seems to cast some doubt on our conclusion set forth at the end of the preceding paragraph, that a 5.3(c) violation is not a prerequisite to a 5.3(a) or (b) violation.