September 23, 2010
Black Letter Law
The Oklahoma Supreme Court has imposed a public reprimand and costs in a case involving the failure to properly supervise a non-lawyer employee. The court opinion provides a useful discusion of the rule and the basis for its conclusions concerning the violation:
A lawyer is duty-bound to supervise the work done by lay personnel and stands ultimately responsible for work done by the entire nonlawyer staff. The work of unlicensed personnel for a lawyer is done by them as agents of the lawyer who employs them. It is the lawyer who must exercise complete, though indirect, professional control over the actions of the employees. A lawyer has the ultimate responsibility to ensure that the internal processing system of his office is in compliance with his professional obligations. A licensed legal professional who fails properly to supervise unlicensed personnel is guilty of dereliction of duty. ORPC Rule 5.3. Violating the Rules of Professional Conduct through the acts performed by another is professional misconduct under ORPC Rule 8.4(a).
Respondent's utter failure to supervise any of Wingo's work activities not only enabled Wingo to misrepresent respondent's individual involvement in the case but also to engage in the unauthorized practice of law by performing legal services in the form of legal research, the alleged preparation of a motion for postconviction relief and of a petition for writ of certiorari to the United States Supreme Court without proper supervision by a licensed lawyer. Respondent's dereliction violated ORPC Rule 5.5(b), which provides that "a lawyer shall not . . . assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law."
The vicarious responsibility of a lawyer subjects that professional both to private-law (civil) liability as well as to the Bar's disciplinary process of public law. Today's opinion deals exclusively with the respondent's breach of his public-law duty as a member of the Bar. A disciplinary dereliction that comes under the rubric of a lawyer's breach of vicarious professional responsibility may not be treated as less serious than one of the same nature which was brought to enforce a practitioner's personal disciplinary responsibility by his own act or omission. Both breaches must be dealt with as being of equal seriousness. The discipline to be imposed for these derelictions should not vary one iota if the facts are identical. We must hence look at the respondent's breach in the same light as we would if this case were here to enforce his own disciplinary offense rather than his vicarious responsibility for breach by a third party acting as respondent's agent. In short, although the respondent was not the actor, the act in suit is imputed in law to his own doing. The gravity of the breach is equal to that which would apply if committed individually by the respondent's own act or omission.
Simply and concisely stated, a lawyer's vicarious public-law liability, in the context of a disciplinary bar proceeding, means that all licensed lawyers are fully and absolutely accountable for all breaches of professional ethics committed not only by fellow lawyers in the law firm, but also by those persons who are unlicensed or lay employees of a lawyer or of an association of lawyers in a single firm, regardless of the firm's name or of its precise legal entity.
The record shows that respondent fell woefully short of his obligation to supervise a nonlawyer employee in the operation of a business that provided legal support and research services under respondent's name and to make reasonable efforts to ensure that Wingo's conduct was compatible with the respondent's professional obligations as a licensed practitioner. By his utter dereliction of duty respondent made the offense possible. He gave the offender a home from which to harm innocent people. While respondent may be an entirely innocent victim of a designing employee, that does not reduce his culpability in law one iota. He is vicariously liable in disciplinary responsibility for all the misdeeds of his unlicensed employee which went unnoticed until the victim complained.
There are not a lot of cases that discuss the supevisory obligations of attorneys. This one may serve as a teaching tool. (Mike Frisch)
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