Associates in law firms have a unique role. Sometimes, they bear the laboring oar of completing legal services under the direction and supervision of partners and other senior attorneys. Associates are often at a point in which they don't yet have clients of their own, but they are honing the skills that will carry them through their careers.
Notwithstanding a seemingly junior role, associates still have an individual obligation to comply with professional and ethical obligations. This dynamic can be complex for associates, who may sometimes feel that they serve two masters: their law firms and their personal obligations under the Rules of Professional Conduct.
This article discusses five areas of particular importance to associates in navigating the professional duties and obligations that may arise during the nascent years of their careers.
Duty to Report Issues
Associates may sometimes believe they are expected to do as they are told, without question, and that only law firm partners are responsible for ensuring that a matter is handled ethically. This is a common misperception. Associates cannot turn a blind eye to ethical wrongdoing and must adhere to their duties under the Rules of Professional Conduct. Associates generally are not excused from violations of their professional duties by stating that they were simply following orders or relying on partners.
Associates who observe misconduct on their matters can take steps to alert others, most often the firm's internal risk manager or general counsel. This is consistent with the encouragement by the Model Rules for all attorneys to "inform the appropriate professional authority" when they have knowledge of another lawyer committing a violation of the professional rules related to honesty, trustworthiness, or fitness. (Model R. Prof'l. Conduct 8.3)
At the first sign of a problem, associates can share issues with internal risk managers to alert the firm to potential ethics or professional issues. In so doing, associates can protect their clients, their firms and their own reputations. Staying silent about an issue because of a concern about "tattling" internally, particularly when that issue could negatively impact the client or the firm, is typically not advisable. Firms can also take steps to ensure that junior attorneys are aware of the firm's expectations and that such disclosures are encouraged.
Duty to Supervise Nonlawyers
Associates are often supervised by more senior attorneys. Still, even early on, associates may also elect to delegate work to secretaries, legal assistants, paralegals and other administrative professionals. When delegating work to nonlawyers, associates have corresponding duties of oversight and supervision.
Additionally, associates can be wary of delegating assignments to nonlawyers that could constitute the unauthorized practice of law. Many associates supervising nonlawyers will also take care to ensure that they are not instructing nonlawyers to do any task that the associates themselves are ethically prohibited from doing. For example, if an associate is not permitted to directly contact a witness, that associate cannot instruct their assistant to do so instead. Indeed, that is true for attorneys of any level. (Model. R. Prof'l Conduct 5.3)
Risks of Social Media Posting
Social media has become increasingly useful for attorneys communicating with other lawyers and with actual and prospective clients. These platforms typically also allow associates to build relationships and networks in the legal community and to reach potential clients.
These benefits come with certain costs, however. Associates should be mindful of their professional duties when posting to a social media site. For example, a personal social media profile may qualify as a legal advertisement, subject to the restrictions of the Rules of Professional Conduct. Likewise, an associate could inadvertently create an attorney-client relationship or breach the duty of confidentiality by providing advice and posting information online.
Associates also can find themselves in trouble with their law firms if they unwittingly create a business conflict. Posting a personal opinion about an industry or company could result in headaches for the associate's firm that represents that industry or company.
Risks of Moonlighting
Associates sometimes take a second job to explore other interests or to assist with law school debts or other expenses. While some might choose a second job in an unrelated field to earn a little extra cash, associates moonlighting with outside legal work face unique risks. Although some risks can be addressed through obtaining the full knowledge and consent of the law firms involved and of any affected clients, this step (which can also be quite administratively daunting) might not alleviate all potential risks.
For example, associates transporting and working on files from their off-hours legal jobs may increase the risks of breaches in confidentiality or potential conflicts of interest when working for clients during their day jobs. Further, moonlighting creates insurance coverage risks. A moonlighting associate may trigger their primary employer firm's policy, even if a representation is not directly affiliated with the firm. Even worse, an associate could be left personally liable for alleged malpractice.
Moonlighting associates also risk the second job draining their productivity and ability to meet deadlines in their day job, increasing the likelihood of mistakes or errors.
The duties and risks discussed above provide an overview of some issues that associates may face in adhering to their professional and ethical duties. Though associates are themselves accustomed to being supervised by partners and other senior attorneys, associates should be careful not to overlook their own duties as attorneys.
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