August 2018

Competence and Supervision in The Project Based Attorney Model

The ethics rules regarding competence and supervision are most useful in guiding attorney ethics decisions when read in tandem. Rule 1.1 talks about the responsibility of a lawyer to provide their clients with competent legal services. Rule 5.1 talks about the lawyer’s responsibility to supervise; a lawyer has a responsibility to ensure supervisees follow the rules of professional conduct.

These rules imply that lawyers are responsible for providing competent legal work to clients regardless of whether they are doing the work themselves or assigning it to a subordinate. Take the example of a senior attorney at a firm who gives a project to a young attorney knowing that the attorney cannot provide competent legal work for the assigned matter. The senior attorney may violate Rule 5.1(b) or 5.1(c) by allowing two violations of Rule 1.1 to take place. The supervising lawyer might violate 5.1(b) when they do not ensure that the young lawyer is practicing competently. The supervising lawyer may also violate 5.1(c) by ratifying the conduct of the young lawyer and then passing the work onto the client.

New York’s amendment to the Model Rule explicitly makes this point when it adds that lawyers must consider the experience of the lawyers they are supervising. Just as any lawyer in a firm would oversee the work of their associate so too should the hiring lawyer be in a position and able to oversee the project-based associate’s work product when hiring and engaging on a project basis.

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Therefore, attorneys hiring associates on a project basis need to consider these two rules just as they would if the associate was a full-time employee in their own firm. Further, a lawyer hiring an attorney on a project basis might follow New York’s example even if their jurisdiction does not include such language. Doing so will ensure that hiring attorneys use best practices oversight of the project lawyer’s work. Not only will the hiring lawyer be providing the client a better work product, but it could lead to a more productive relationship for the attorneys.