(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.
Comment
[1] Although a lawyer is not relieved of responsibility
for a violation by the fact that the lawyer acted at the direction of
a supervisor, that fact may be relevant in determining whether a lawyer
had the knowledge required to render conduct a violation of the Rules.
For example, if a subordinate filed a frivolous pleading at the direction
of a supervisor, the subordinate would not be guilty of a professional
violation unless the subordinate knew of the document’s frivolous
character.
[2] When lawyers in a supervisor-subordinate relationship
encounter a matter involving professional judgment as to ethical duty,
the supervisor may assume responsibility for making the judgment. Otherwise
a consistent course of action or position could not be taken. If the
question can reasonably be answered only one way, the duty of both lawyers
is clear and they are equally responsible for fulfilling it. However,
if the question is reasonably arguable, someone has to decide upon the
course of action. That authority ordinarily reposes in the supervisor,
and a subordinate may be guided accordingly. For example, if a question
arises whether the interests of two clients conflict under Rule 1.7,
the supervisor’s reasonable resolution of the question should
protect the subordinate professionally if the resolution is subsequently
challenged.
