| Fees/Duty to Supervise
Q: My associate is a billing machine. Don’t get me wrong, I
appreciate it, but some of her time sheets now seem to be a bit far-fetched.
There are only so many hours in a day, right? At some level, I want to say
“live and let live.” If I turn a blind eye, though, am I at risk
if she takes a fall with the State Bar?
A: Can I restate your question? Do you have a duty to supervise your associate,
the violation of which will subject you to discipline? Yes.
While not articulated in an actual California Rules of Professional Conduct,
case law is clear that there is a duty placed upon supervising attorneys to
supervise support staff, office managers and associate attorneys. More directly,
a supervising attorney of a group of subordinates is considered responsible
for the misconduct of his or her subordinates.
Your inquiry regarding fees then becomes relatively straightforward. Is your
associate charging an illegal or unconscionable fee? See Rule 4-200. If so,
yes, you are subject to discipline. Whether a “billing machine”
is the same as being unconscionable, well, that’s another issue.
But let me expand upon your question a bit. Yours is easy: if your associates
are violating rules of conduct that you know about, or reasonably should know
about, you are in harm’s way. The rule, though, extends to paralegals,
secretaries and law clerks as well. At a bare minimum, non-attorneys should
not come close to practicing law (the definition of which is far from clear).
Rule 1-300(A). Moreover, such personnel share your statutory duties to the
client, such as that to maintain inviolate client confidences and secrets.
Cal. B & P Code Section 6068(e). Supervision aside, prudence dictates
they that be alerted to such. That protects the client, and at risk of sounding
mercenary, that protects the attorney.
This column is intended to be informal and nonauthoritative, and does
not represent the position of the San Diego County Bar Association. The discussion
does not apply to everyone, and you should retain legal counsel to assist
with your individual circumstances.
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