Tex. R. Disc. Prof'l. Cond. 5.01
Tex. Disc. R. Prof. Cond. 5.01
Comment:
1. Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to these Rules. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised. The fact that a supervised lawyer within a law firm violated a rule does not, without more, indicate that the lawyers who have managerial authority over the firm also violated paragraph (a) if the lawyers with managerial authority over the firm have implemented appropriate compliance controls.
2. Whether particular measures or efforts satisfy the requirements of paragraphs (a) or (b) will depend on the circumstances. The question might depend upon the law firm's structure and the nature of its practice, including the size of the law firm, whether it has more than one office location or practices in more than one jurisdiction, or whether the firm or its partners engage in any ancillary business.
3. A partner, shareholder, or other lawyer in a law firm who has intermediate managerial responsibilities satisfies paragraph (a) if the law firm has a designated managing lawyer charged with that responsibility, or a management committee or other body that has appropriate managerial authority and is charged with that responsibility. For example, the managing lawyer of an office of a multi-office law firm would not necessarily be required to promulgate firm-wide policies intended to reasonably assure that the law firm's lawyers comply with these Rules.
4. Paragraph (c) expresses a general principle of personal responsibility for acts of another. See also Rule 8.04(a). Paragraph (c)(1) provides that lawyers, with or without managerial authority or supervisory authority, may have disciplinary liability for another lawyer's conduct if they order that conduct or, with knowledge of the specific conduct in question, ratify the conduct. Whether a lawyer has ratified conduct will depend on the circumstances. A lawyer may ratify conduct, among other ways, by encouraging, knowingly permitting, or knowingly failing to take reasonable remedial action to avoid or mitigate the consequences of the other lawyer's violation. What constitutes reasonable remedial action would depend on many factors, such as the immediacy of the lawyer's knowledge and involvement, the nature of the action that can reasonably be expected to avoid or mitigate injurious consequences, and the seriousness of anticipated consequences. In some circumstances, it may be sufficient for a junior or supervised lawyer to refer the ethical problem directly to a designated senior lawyer or a management committee.
5. Paragraph (c)(2) defines the duty of a lawyer having managerial authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. A partner or manager in charge of a particular matter ordinarily has supervisory responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial action by a managing or supervising lawyer would depend on the immediacy of that lawyer's involvement and the seriousness of the misconduct. A managing or supervising lawyer is required to intervene to prevent avoidable consequences of misconduct if the managing or supervising lawyer knows that the misconduct occurred. For example, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, both the subordinate and supervisor has a duty to correct the resulting misapprehension.
6. Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction or ratification of the violation.
7. Apart from this Rule and Rule 8.04(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate, or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these Rules.
8. The duties imposed by this Rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by these Rules. See Rule 5.02.