204 Pa. Code r. 5.3 - Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a
partner and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable assurance that
the person's conduct is compatible with the professional obligations of the
lawyer.
(b) a lawyer having direct
supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with the professional
obligations of the lawyer; and
(c)
a lawyer shall be responsible for conduct of such a person that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge
of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable
managerial authority in the law firm in which the person is employed, or has
direct supervisory authority over the person, and in either case knows of the
conduct at a time when its consequences can be avoided or mitigated but fails
to take reasonable remedial action.
Comment:
(1) Paragraph (a) requires lawyers with
managerial authority within a law firm to make reasonable efforts to establish
internal policies and procedures designed to provide reasonable assurance that
nonlawyers in the firm and nonlawyers outside the firm who work on firm matters
act in a way compatible with the professional obligations of the lawyer. See
Comment (6) to Rule
1.1 and Comment (1) to Rule
5.1. Paragraph (b) applies to
lawyers who have supervisory authority over such nonlawyers within or outside
the firm. Paragraph (c) specifies the circumstances in which a lawyer is
responsible for conduct of a nonlawyer that would be a violation of the Rules
of Professional Conduct if engaged in by a lawyer.
Nonlawyers Within the Firm
(2) 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.
Nonlawyers Outside the Firm
(3) A lawyer may use nonlawyers
outside the firm to assist the lawyer in rendering legal services to the
client. Examples include the retention of an investigative or paraprofessional
service, hiring a document management company to create and maintain a database
for complex litigation, sending client documents to a third party for printing
or scanning, and using an Internet-based service to store client information.
When using such services outside the firm, a lawyer must make reasonable
efforts to ensure that the services are provided in a manner that is compatible
with the lawyer's professional obligations. The extent of this obligation will
depend upon the circumstances, including the education, experience and
reputation of the nonlawyer; the nature of the services involved; the terms of
any arrangements concerning the protection of client information; and the legal
and ethical environments of the jurisdictions in which the services will be
performed, particularly with regard to confidentiality. See also Rules
1.1,
1.2,
1.4,
1.6,
5.4(a), and
5.5(a). When
retaining or directing a nonlawyer outside the firm, a lawyer should
communicate directions appropriate under the circumstances to give reasonable
assurance that the nonlawyer's conduct is compatible with the professional
obligations of the lawyer.
(4)
Where the client directs the selection of a particular nonlawyer service
provider outside the firm, the lawyer ordinarily should agree with the client
concerning the allocation of responsibility for monitoring as between the
client and the lawyer. See Rule
1.2. When making such an
allocation in a matter pending before a tribunal, lawyers and parties may have
additional obligations that are a matter of law beyond the scope of these
Rules.
Notes
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