Subordinates Remain Bound

Subordinate Lawyer Responsibility

Subordinates Remain Bound

A junior lawyer who carries out an instruction from a partner, a supervising attorney, or a client stays personally bound by the Rules of Professional Conduct. Rule 5.2(a) says so in a single sentence: a lawyer is bound by the Rules notwithstanding that the lawyer acted at the direction of another person.¹ Rank inside a firm does not change who answers for the act. The lawyer who acted does.

The alternative shows why the rule is so absolute. If an order could excuse a violation, a firm could route improper conduct through its most junior lawyers, the ones with the least power to refuse. Holding the actor responsible closes that route, and it gives the subordinate a principled answer for any superior who insists on something improper. Rule 5.2 pairs this default with a single exception in paragraph (b), which the next section takes up. For now, paragraph (a) stands alone.

A threat of discharge does not change the answer. Suppose Okafor adds that refusal will cost Lindqvist his job. Lindqvist must still "do the right thing" even though his position is at risk.² If a threat could excuse a violation, the employer's economic leverage would set the ethical standard in place of the Rules. Rule 5.2 does not promise a refusing lawyer protection from the consequences, but compelled compliance with the ethics rules may give a discharged or demoted lawyer a basis for challenging that personnel action within the firm.³

Recognizing when an instruction crosses the line takes preparation. Professor W. Bradley Wendel draws the corollary: a subordinate lawyer has a responsibility to "do your own research into the law governing lawyers," because only then can the lawyer know whether the supervising lawyer's direction is reasonable or not.⁴

Paragraph (a) works by keeping the underlying Rules in force against the lawyer who acts. It creates no violation of its own.⁵ The first question in any problem is therefore whether some other Rule was actually broken, and (a) matters only when one was.

This absolute default gives paragraph (b) its shape. Rule 5.2(b) provides that a subordinate lawyer does not violate the Rules if the lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.⁶ Because (a) already binds the actor to every Rule, (b) is the only place the Rules allow deference to a superior's judgment, and it reaches only questions that reasonable lawyers could dispute. When the Rules speak plainly, nothing is arguable for a supervisor to resolve. Paragraph (b) then has no application, and the subordinate remains bound whatever the superior commands.⁷