The Reasonable-Resolution Defense

Rule 5.2(b) gives a subordinate lawyer one defense: a subordinate does not violate the Rules of Professional Conduct by acting in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.¹ The defense qualifies the default in Rule 5.2(a), under which a lawyer who follows instructions remains bound by the Rules. It has two conditions, and both must hold. The question must be arguable, and the supervisor's resolution of it must be reasonable. If either condition fails, the subordinate stands where Rule 5.2(a) put her, answerable for her own conduct.

The sections below take each condition in turn and then show why the defense reaches so few cases.

An Arguable Question

The first condition concerns the question, not the answer. Rule 5.2(b) reaches only an arguable question of professional duty.² A question is arguable when it is debatable enough that reasonable people could disagree about the correct resolution.³ The test looks at what the Rules require of the lawyers. The strength of the client's case is a separate matter: an associate may be certain the client will lose and still face an open question about what the Rules require, while an overwhelming case cannot make a plainly forbidden act debatable.

When the directive of the Rules is clear and not subject to reasonable disputation, Rule 5.2(b) has no application. The subordinate remains bound by the rule notwithstanding the contrary command of a superior. She must “do the right thing” even if she faces the loss of her position, although compelled compliance with the ethics rules may give her a basis for challenging an adverse personnel action within the firm.⁴

Pruitt faces an arguable question. The controlling court has spoken, but a respectable argument exists that the law may move, so reasonable lawyers could disagree about whether the filing is permissible. If Vasquez's resolution is reasonable, Pruitt may act on it. Marsh faces no arguable question. No lawyer could seriously debate that instruction, so the partner has nothing debatable to resolve, Rule 5.2(b) has no application, and Marsh remains bound whatever the partner commands.⁵ What separates the two is how clearly the Rules speak. The supervisor's rank and the firmness of the instruction are the same in both.

The condition also imposes a duty on the subordinate, because a lawyer cannot tell a debatable directive from a clear one without knowing what the Rules say. As Professor W. Bradley Wendel warns, an implicit corollary of Rule 5.2(b) is that the subordinate must “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.⁶ Ignorance of the Rules creates no doubt about what they require.

A Reasonable Resolution

The second condition looks at the supervisor's answer. Debatability opens the door but does not finish the analysis, because a debatable question can be answered well or badly. Rule 5.2(b) protects the subordinate only when she acts in accordance with a reasonable resolution of the arguable question.⁸ The two conditions are cumulative. If the question is clear, the subordinate remains bound. If the question is arguable but the supervisor's answer is unreasonable, she remains bound just the same.

The word “reasonable” keeps the exception from swallowing the default duty. If a supervisor's say-so were enough, any improper instruction could be recast as a judgment call, and the subordinate's personal duty would vanish whenever a superior announced a conclusion. A reasonableness standard ties protection to the quality of the answer instead of the rank of the person giving it. The Rules still give real weight to supervisors' judgment. Once internal debate on a difficult ethics question has ended, it is generally acceptable for subordinate lawyers to let their supervisors decide close ethical questions, because lawyers in supervisory or leadership roles commonly have more experience and greater professional knowledge on which to draw.⁹ That weight rests on expertise, so it extends only as far as answers an experienced lawyer could defend.

Abernathy's answer is one a reasonable lawyer could give on a debatable question, so the associate acted in accordance with a reasonable resolution and is protected by Rule 5.2(b), even if a court later holds the claim frivolous. The protection tracks the quality of the supervisor's judgment when it was given. A later loss does not undo it, and even a supervisor whose choice is later determined to have been wrong may be found not to have violated the Rules if the matter was indeed debatable.¹⁰

Change what the supervisor says, and the result changes.

Delgado's answer concedes that the law forecloses the claim and relies on judicial inattention in place of a legal argument. No reasonable lawyer could resolve the question that way, so the associate gets no protection from Rule 5.2(b) and remains bound. Which condition failed matters less than the result. If the concession shows the question is no longer arguable, the first condition fails, and if the question began as arguable, the answer fails the second. Either way the subordinate falls back on the default rule. Sincere trust in the supervisor does not turn an unreasonable answer into a protected one, and a subordinate cannot tell the two apart without knowing the law governing lawyers.¹¹

Why the Defense Stays Narrow

Each of the two conditions removes a large share of the cases in which a subordinate might hope to invoke the exception.¹³ When the Rules' directive is clear, nothing is arguable, and the subordinate remains bound however firmly the superior insists. When the question is debatable but the supervisor's answer is one no reasonable lawyer could defend, she remains bound for that reason instead. Only a thin band of cases survives both filters. That is why Rule 5.2(b) is described as a very narrow exception to the lawyer's personal and non-delegable duty to follow the ethics rules, affording the subordinate limited protection.¹⁴

The narrowness shows from the supervisor's side as well. When a question is sufficiently arguable that reasonable people could disagree about the correct resolution, even the supervisory lawyer is less likely to be disciplined.¹⁵ As Professors Hazard and Hodes and attorney Jarvis remark, if the matter is indeed debatable, even the supervisory lawyer may be found not to have violated the Rules if the choice is later determined to have been wrong.¹⁶ The debatability that supports the subordinate's defense thus tends to shield the supervisor too, which leaves the defense little to do beyond that thin band.

The far larger group of cases lies outside the defense, as the earlier hypothetical about Marsh shows.

Rule 5.2(b) never made obedience a safe option for Marsh, because the directive was clear and the exception had nothing to attach to. Her choice was therefore never between obeying safely and risking her job. She had to “do the right thing” even at the risk of losing her position, although compelled compliance with the ethics rules may give her a basis for challenging the firm's adverse personnel action.¹⁷

A subordinate should therefore treat Rule 5.2(b) as limited protection and never as a plan. The defense works only if the question really was arguable and the supervisor's answer really was reasonable, and a lawyer who has not learned what the Rules require cannot know whether either is true.¹⁸ The safe course is to know the Rules first, and to defer to a supervisor only on questions that remain close after the debate is over.