Opinion 2018

The inquirer heads the legal department of a business. His department represents the business in a large number of garnishments and other lawsuits. It consists of one other lawyer and eight clerks. Various procedures have been set up for the operation of his department to assure that the inquirer or the other lawyer has control over the actions of those employed in the department and of the work the employees produce. The inquirer sets out three different scenarios of additional facts about the operation of the legal department and requests the committee advise if sufficient supervision and control is being provided. In the first scenario, the inquirer describes some procedures for supervision and control of the home office. In the second and third, he describes procedures for supervision and control of legal actions conducted in the foreign office of the business that employs him.

The committee opined that your inquiry is governed by RPC 5.1, 5.2 and 5.3. RPC 5.3(b) requires a lawyer having direct supervisory authority over nonlawyers to make reasonable efforts to ensure that the nonlawyers’ conduct is compatible with the professional obligations of the lawyer. RPC 5.3(c) makes the lawyer responsible for any conduct of the nonlawyers that violates the Rules of Professional Conduct, if the lawyer knows about the conduct and (1) ratifies it, or (2) fails to take remedial action that could avoid or mitigate its consequences.

In each of the three scenarios, the inquirer has set up a system for the training of nonlawyer staff and of various checks and review of their work that puts control of the product of the department into the inquirer’s hands or those of the department’s other lawyer. Because, however, “reasonable efforts” under RPC 5.3 are highly fact dependent and variable, the committee is not in a position to opine whether the inquirer’s efforts satisfy the standard of the rule. In order to satisfy RPC 5.1, 5.2 and 5.3, the inquirer is required to exercise ongoing control to assure that the nonlawyer staff are remaining within the bounds of the RPCs and, if they stray, corrective or remedial action is timely taken.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.