(a) A partner 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 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 requests or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer has direct supervisory authority over the person, or is a partner in the law firm in which the person is employed, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
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 should 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 should take account
of the fact that they do not have legal training and are not subject
to professional discipline.
[2] Just as lawyers in private practice may direct
the conduct of investigators who may be independent contractors, prosecutors
and other government lawyers may effectively direct the conduct of police
or other governmental investigative personnel, even though they may
not have, strictly speaking, formal authority to order actions by such
personnel, who report to the chief of police or the head of another
enforcement agency. Such prosecutors or other government lawyers have
a responsibility with respect to police or investigative personnel,
whose conduct they effectively direct, equivalent to that of private
lawyers with respect to investigators whom they retain. See also Comments
[3], [4], and [5] to Rule 5.1, in particular, the concept of what constitutes
direct supervisory authority, and the significance of holding certain
positions in a firm. Comments [3], [4], and [5] of Rule 5.1 apply as
well to Rule 5.3.
