By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
Rules 5.1 and 5.2 of the Illinois Rules of Professional Conduct set forth the circumstances when an attorney may be disciplined for conduct of an attorney subordinate to him or her and, under which, the subordinate attorney may be exonerated for following the supervising lawyer's direction.
Rule 5.1(b) says a lawyer with direct supervisory authority over another lawyer is required to make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. Rule 5.1(c) provides that a lawyer may be disciplined for another lawyer's violation of the Rules of Professional Conduct if: 1) the lawyer orders or, with 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 other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
In In re Howarter, 01 SH 93 (2002), an attorney was reprimanded for allowing a subordinate attorney to contact named defendants and managerial employees of a defendant, to sign the names of witnesses to witness statements without their permission and to submit discovery containing misstatements of witnesses' knowledge.
In In re Smith, 93 CH 541, M.R. 10715 (1995), an attorney was censured for conduct that included failing to supervise a subordinate in two bankruptcy cases, when the subordinate voluntarily dismissed the two cases without the knowledge or consent of the clients and without advising the clients of the consequences of the dismissal of their cases.
In In re Dobkin, 04 RC 1517, M.R.19830 (2005), an attorney was reprimanded for conduct that included failing to adequately supervise an associate to ensure that the associate accurately informed the client of the status of the client's immigration petition.
In In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990), however, the court emphasized that an attorney is not guilty of professional misconduct based on an error of a subordinate when the attorney had no knowledge or reason to know of the error and did not authorize it.
The attorney was accused of commingling and conversion of client funds because the office manager of the firm deposited the funds in the firm's operating account after she was told by the secretary of the associate assigned to the case that the funds were "for costs." The court determined that the attorney's connection to the office manager's error was, at most, tenuous and he had no knowledge that the money was placed in the firm's operating account.
In finding no misconduct with respect to a failure to supervise, the court noted that "an attorney who delegates work to others can only be subject to discipline for conduct he authorized, had knowledge of or had reason to know," citing prior disciplinary cases.
Rule 5.2(a) directs that a lawyer "is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person." The court also disciplined the attorneys who acted at the direction of a supervising attorney.
One of the earliest cases involving superior and subordinate attorneys is In re Armentrout et al., 99 Ill.2d 242, 457 N.E.2d 1262 (1983). In that case, the state's attorney for Kane County devised a scheme to forge signatures on a referendum petition. He enlisted the help of an assistant state's attorney, who in turn recruited several attorneys to actually forge the signatures at "round-tabling sessions." These sessions resulted in the forging of thousands of signatures. All participants were indicted and pleaded guilty to violating various provisions of the Election Code. Although the principals received harsher disciplinary sanctions, the court censured the subordinate attorneys, noting their inexperience and lack of leadership role in the scheme and that they "undoubtedly were influenced by the fact that [Charles] Petersen, an assistant state's attorney, and [Eugene Lee] Armentrout, the state's attorney, approved the project."
In In re Rodosky, No. M.R. 20445, No. 04 CH 65 (2005), an associate assisted in the preparation and filing of a declaration and application for attorney fees and a supporting memorandum requesting an award of $2.75 million for fees and expenses and stating that the firm would not receive any additional compensation. Although the documents disclosed that the firm had one-third contingent fee agreements with certain named plaintiffs, it did not disclose that the firm planned to enforce those agreements in addition to the fees awarded from the $3 million fund. Although the declaration and memorandum were prepared at the direction of a supervising attorney who reviewed them before they were filed, the associate was censured for her participation in drafting and filing the documents.
A supervising attorney may also be disciplined for failing to make reasonable efforts to ensure that a non-lawyer's conduct is compatible with the professional obligations of the lawyer under Rule 5.3(b).