Also known as: arguable questions of professional duty
Written by attorneys · grounded in primary & secondary sources — see below
A close or debatable issue arising under the professional conduct rules on which reasonable lawyers could reach different conclusions. A subordinate lawyer who follows a supervisor's reasonable resolution of the issue does not violate the rules even if another interpretation might later prevail.
Alexis Archer, a junior associate, reviews mixed-content emails during discovery in a construction case. Her supervising partner concludes that asserting privilege over the entire set is reasonable given the blend of strategy and facts. Archer follows the instruction and logs the documents accordingly. The partner’s resolution shields her from discipline because the scope of privilege presented a genuinely arguable question.
Adam Anderson, a first-year associate, locates older site data outside the ten-year window stated in a discovery request. The supervising partner directs him to object on the request’s plain language and withhold the records. Anderson complies after the partner explains that the wording creates room for reasonable disagreement. The supervisor’s resolution protects Anderson because the duty to produce turned on an arguable interpretation of the request’s scope.
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A subordinate may follow the direction when the underlying question is genuinely arguable and the supervisor’s resolution is reasonable. The protection applies only to close calls where reasonable lawyers could differ, not to clearly prohibited conduct.
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Yes. Each lawyer must comply with the rules independently. The safe harbor exists only when the supervisor resolves an arguable question reasonably. Otherwise the subordinate can be disciplined for participating in the violation.
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The question is arguable when the facts or rules permit more than one plausible interpretation that a reasonable lawyer could adopt. Ambiguous documents, unclear scope of discovery obligations, or debatable privilege claims typically qualify.
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No. If the junior recognizes that the conduct is clearly unethical or that the supervisor’s resolution is unreasonable, the safe harbor does not apply and the junior remains subject to discipline.
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