The duty to supervise others is a critical aspect of practicing law, but it’s is sometimes overlooked in the hierarchy of ethical obligations. The consequences of failing to supervise less experienced lawyers or nonlawyers can be significant. For example, recently a Pennsylvania lawyer with an unblemished record was suspended from the practice of law for six months because he failed to take reasonable steps to monitor and supervise an assistant who stole thousands of dollars from clients.

Critically, the Pennsylvania bar found that the lawyer knew that the assistant had previously stolen client funds in 2013 and again in 2016. Thus, the lawyer’s failure to take additional steps—either by way of instituting additional oversight safeguards or effective remedial action—led to disciplinary action.

Remote working has only created more challenges for lawyers who have obligations to supervise others. Lawyers may find they have less insight into firm operations without the benefit of daily face-to-face interaction in the office. Here are some tips for ensuring ethical compliance while maintaining a virtual practice.

Make Decisions Based on Available Information

In running a practice, lawyers cannot do it all. Instead, they often rely on junior attorneys, paralegals and other staff in day-to-day operations, including legal tasks, communication with clients, billing and organizational tasks.

A lawyer’s duty of supervision does not typically mean the lawyer must physically observe every single task completed by someone they are supervising. Indeed, that defeats the purpose of delegation. Further, it is typically reasonable for a lawyer to expect a nonlawyer or junior lawyer will follow clear instructions on a task. Similarly, it is reasonable for lawyers to expect that where their subordinates have been made aware of ethical obligations, those subordinates will act accordingly.

But recent bar decisions suggest that if a lawyer has a reason to believe the person they are supervising is not qualified or is unable to serve the client’s interests, he or she may be responsible for that person’s missteps. There have been many cautionary tales from around the country in recent years.

Last year, an Indiana attorney agreed to a 60-day suspension for failing to appropriately supervise an assistant, who stole several thousand dollars from the firm’s operating account, overdrafted the firm’s trust account and created fraudulent legal documents. And in 2018, a Florida attorney was disbarred for hiring a nonlawyer that had been previously convicted of fraud, entrusting him with the firm’s trust account despite warnings from his probation officer and failing to adequately supervise him thereafter, which led to the embezzlement of nearly $5 million in a four-year period.

These decisions suggest that, although it is reasonable to rely on others to support a law practice, the lawyer may have additional obligations when he or she has a reason to suspect the person they are supervising is engaged in misconduct or is incapable of meeting ethical expectations.

Supervision in the Digital Era

There can be additional challenges in supervising other members of the team when working remotely. Previously, a supervising attorney may have had more insight into what the team is doing on a day-to-day basis simply from being in the office. In the wake of the COVID-19 pandemic, one of the challenges is maintaining the necessary level of supervision despite the physical separation inherent in remote work.

In March, the American Bar Association issued Formal Opinion 498, which provided guidance on the ethical responsibilities for attorneys engaged in a “virtual practice.” Among other things, the ABA opinion touched on the obligation of supervisory or managerial attorneys to regularly interact and communicate with nonlawyers they supervise. Not only can routine contact help ensure an attorney is appropriately monitoring subordinates, but it can also help keep tabs on the team’s health and wellness.

Several state bars have also issued similar guidance. While none appear to have imposed hard and fast rules or any specific steps that lawyers must take, they do demonstrate the wide range of options lawyers have to make sure they are meeting their ethical obligations in a remote environment. One of the recommendations from the New York bar was for attorneys to consider whether additional or enhanced measures are needed to help supervise others, such as monitoring firm networks and tightening off-site work procedures. The Florida and Wisconsin bars suggested that firms could consider providing training on firm rules and procedures to nonlawyers. Numerous state bars have also echoed the ABA’s recommendation of frequent contact with non-lawyers, whether by videoconference or phone.

Lawyers can consider whether any additional practices or procedures are needed to ensure they are properly supervising subordinates while working remotely.

Avoid Shortcuts and Develop Protocols

The Rules of Professional Conduct in many states, including Georgia, confirm that lawyers are generally not permitted to take tasks they are not ethically permitted to do and delegate them to others instead. Indeed, Georgia Rule of Professional Conduct 8.4(a) prohibits an attorney from, among other things, knowingly assisting or inducing another to violate the rules of professional conduct and the attorney from doing so through the acts of another. In addition, pursuant to Rule 5.1, attorneys can be responsible for others’ violations if they order the conduct or ratify it or where they know about the misconduct but fail to take reasonable remedial action at a time when its consequences can be mitigated or avoided.

Notably, though, duties may be met where a firm’s leadership puts in place internal policies that help ensure firmwide compliance with ethical rules on, for example, conflicts of interest and meeting deadlines. Rule 5.1(a), cmt. [2]. In such situations, it is generally reasonable to expect (absent evidence to the contrary) that other staff or attorneys will comply with those protocols.

By considering their own obligation to supervise others, lawyers can help take steps to reduce risk and manage their practices.