Utah Sup. Ct. R. Prof'l. Prac. 5.1
Utah. Sup. Ct. R. Prof'l. Prac. 5.1
Comment
[1] Paragraph (a) applies to licensed paralegal practitioners who have managerial authority over the professional work of a firm of licensed paralegal practitioners. This includes members of a partnership, the shareholders in a firm organized as a professional corporation and members of other associations authorized to practice law as licensed paralegal practitioners; and licensed paralegal practitioners who have intermediate managerial responsibilities in a firm of licensed paralegal practitioners. Paragraph (b) applies to licensed paralegal practitioners who have supervisory authority over the work of other licensed paralegal practitioners in a firm.
[2] Paragraph (a) requires licensed paralegal practitioners with managerial authority within a firm of licensed paralegal practitioners to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all licensed paralegal practitioners in the firm will conform to the Licensed Paralegal Practitioner Rules of Professional Conduct. 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 licensed paralegal practitioners are properly supervised. The responsibility for the firm's compliance with paragraph (a) resides with each partner, or other licensed paralegal practitioner in the firm with comparable authority. Even though the concept of firm discipline is possible, a firm should not be responsible in the absence of individual culpability for a rule violation.
[3] Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) can depend on the firm's structure and the nature of its practice. In a small firm of experienced licensed paralegal practitioners, informal supervision and periodic review of compliance with the required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be necessary. Some firms, for example, may put in place a procedure whereby junior licensed paralegal practitioners can make confidential referral of ethical problems directly to a designated partner or special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all licensed paralegal practitioners associated with the firm will inevitably conform to the Rules.
[4] Paragraph (c)(1) expresses a general principle of personal responsibility for acts of another. See also Rule 8.4(a).
[5] Paragraph (c)(2) defines the duty of a partner or other licensed paralegal practitioner having comparable managerial authority in a firm of licensed paralegal practitioners, as well as a licensed paralegal practitioner who has direct supervisory authority over performance of specific legal work by another licensed paralegal practitioner. Whether a licensed paralegal practitioner has such supervisory authority in particular circumstances is a question of fact. Partners and licensed paralegal practitioners with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm licensed paralegal practitioners engaged in the matter. Appropriate remedial action by a partner or managing licensed paralegal practitioner would depend on the immediacy of that licensed paralegal practitioner's involvement and the seriousness of the misconduct. A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising licensed paralegal practitioner knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
[6] Professional misconduct by a licensed paralegal practitioner under supervision could reveal a violation of paragraph (b) on the part of the supervisory licensed paralegal practitioner even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation.
[7] Apart from this Rule and Rule 8.4(a), a licensed paralegal practitioner does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a licensed paralegal practitioner may be liable civilly or criminally for another licensed paralegal practitioner's conduct is a question of law beyond the scope of these Rules.
[8] The duties imposed by this rule on managing and supervising licensed paralegal practitioners do not alter the personal duty of each licensed paralegal practitioner in a firm to abide by the Licensed Paralegal Practitioner Rules of Professional Conduct. See Rule 5.2(a).