Me. R. Prof. Cond. 5.3

As amended through December 18, 2024

Rule 5.3 - Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the 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 person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Me. R. Prof. Cond. 5.3

COMMENT

[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

REPORTER'S NOTES:

Model Rule 5.3 (2002) corresponds to M. Bar R. 3.13(c), which was adopted by the Maine Supreme Judicial Court in 1997. As was the case with respect to M. Bar R. 3.13(a), M. Bar R. 3.13(c) was modeled on the pre-2002 version of Rule 5.3. As part of the Ethics 2000 project, the scope of Rule 5.3 (as well as Model Rule 5.1 ) was broadened to address not only the responsibility of law firm partners with respect to nonlawyer assistants, but also include as part of the group of responsible lawyers, those lawyers with "managerial authority." This clarification, as it was referred to in the ABA Reporter's Explanation of Changes, recognizes that law is not practiced solely in the context of the traditional law firm partnership; lawyers also organize as professional corporations, they work in corporate and governmental law departments as well as in legal services organizations. The Task Force thought this was an important clarification and recommended adoption as written and recommended adoption of Model Rule 5.3 (2002) as written.