Liability of Subordinate Attorneys for Supervising Attorneys’ Ethics Violation on Billing

[This is another in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules (RPC) impacts how lawyers can and cannot bill their fees and costs.]

In my last blog post, I discussed the liability of supervising attorneys including managing attorneys and those attorneys on a firm’s management committee for ethics violations of another attorney in the same firm.  In that blog post, I noted that the duty to report the misconduct of another lawyer is set out in RPC 8.3.

Failure to report misconduct of another lawyer can have severe consequences for the non-reporting lawyer who has actual knowledge of the misconduct. See  In re Himmel, 533 N.E.2d 790 (Ill. 1998)(lawyer disbarred for failing to report misconduct of another lawyer). The consequences may seem severe in a different sort of way for associates who work under a supervising lawyer who is ethically challenged when it comes to billing.

When I served on my state’s legal ethics hotline, I often fielded questions from subordinate staff including legal secretaries, paralegals, and associate attorneys who were wondering what to do when their supervising attorney was engaged in deceptive billing practices. If the callers were non-lawyers, the answer was simple. I told them that the RPC only apply to lawyers.  But note that paralegals who are certified or registered are subject to their own set of ethics rules and discipline. See, e.g., The National Federation of Paralegal Associations, Inc. Model Code of Ethics and Prof. Responsibility and Guidelines for Enforcement.

However, the RPC do squarely apply to attorneys. And subordinate associates have a duty to report the misconduct of their supervising attorney just as other partners and managing attorneys do as I noted in my previous post.

A slightly different ethical issue arises when the subordinate attorney is directed by the supervising attorney to engage in deceptive billing.   I once fielded a question from a subordinate attorney who was concerned because his supervising partner kept asking him to increase the time the associate was billing each month for “strategy” conferences with his supervisor in order to match the time the supervising attorney was billing. That the associate knew the time the supervising attorney was billing was inflated was one thing, but now the associate was being directed by his supervisor to also inflate his time entries. (He also suspected that his supervisor was inflating his time spent on other tasks.)

Ordinarily, subordinate attorneys are given a pass on doing something that might be considered an ethics violations when they are just following the directions of their supervising attorneys. See RPC 5.2(b)(“A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”).

Note however, for this “safe harbor” provision of RPC 5.2(b) to apply, there must be an “arguable question of professional duty.”  It should go without saying that the question of billing fake time is not “arguable question of professional duty.”  Thus, the associate would not protected from an RPC violation under RPC 52(b) if he complied with the supervisor’s directive and billed fake time.  Moreover, he had an affirmative duty to take action to try “mitigate” the potential RPC violation (e.g., report it to the managing partner).

In my next post, I will wrap up this series of posts on how the RPC impact how attorneys can bill for fees and costs.