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Mentors, Supervisors and Professional Responsibility Recently,
a federal judge told an audience that, “I think you will find that
by and large it is the younger lawyers, less experienced lawyers,
… who tend to be more combative, partly because, I think, being young
they are somewhat insecure and feel that every point has to be argued
to a conclusion, that they have to fight tooth and nail over matters
which probably, when all is said and done, don’t make that much difference.
More experienced lawyers who have been through the process, I think,
generally manifest a more relaxed, and therefore civil, attitude.”1
Does
this statement match with your experience? While it does with this
particular judge, I’m not so sure it accurately reflects my own experience.
There are plenty of very experienced lawyers who are more than willing
to “fight tooth and nail” over trivial issues. Several names may come
to mind while you read this. As
to younger lawyers, my own view is that newly admitted lawyers, usually
fresh out of law school, are still filled with sufficient idealism
and good intentions that they are eager to please and, if anything,
too willing to compromise in order to achieve resolution of a matter.2
Now, for some there may follow a period of readjustment in which the
pendulum indeed swings over to the combative end of the spectrum before
it returns to a more even-tempered handling of matters. Perhaps this
is the period to which the judge refers. Many
younger or less-experienced lawyers do not go through any such period
of difficulty in their learning. Some are just good at what we do
and fit seamlessly into the practice of law. More likely, an experienced
attorney has acted in some way as a mentor, providing guidance and
perspective to the young lawyer, helping her to find a comfortable
method of practice, and answering the myriad of questions that most
new lawyers have, sometimes for several years. For most young lawyers,
finding such a mentor (or mentors) is an important step in learning
not just how to think like a lawyer, but how to truly be a professional.
Many law schools and law-related organizations have started mentoring
programs to help mentor aspiring lawyers.3 Once students graduate from law school, however,
further mentoring is likely “hit and miss” depending on whether the
lawyer is in solo practice or has joined a firm, and even then it
can depend upon the seriousness with which that firm takes its mentoring
obligations. Mentoring and the Rules Mentoring
is not just a sound philosophical concept or business practice. It
can be an integral part of an attorney’s compliance with the Minnesota
Rules of Professional Conduct (MRPC). In particular, Rules 5.1, 5.2
and 5.3, MRPC, deal with the obligations of a supervisory lawyer and
those of subordinate lawyers in return, and help define the ethical
parameters of the relationship between the supervisor and subordinates,
both lawyers and nonlawyer employees. Particularly relevant to mentoring
is Rule 5.1(a), which requires a partner in a law firm, or any other
lawyer who possesses comparable managerial authority in an organization,
to make reasonable efforts to ensure that the entity has in place
measures giving reasonable assurance that all lawyers and support
staff in the entity comply with the requirements of the Rules of Professional
Conduct. Mentoring young lawyers is certainly one of the best ways
to establish and maintain a culture of ethical conduct within a firm
or entity as the rule seems to envision. Of
course mentoring is only as effective as the quality of the mentors
involved and the willingness of the lawyer being mentored to accept
guidance and to learn. If a formalized mentoring relationship is assigned
or created, both parties should be willing to recommend change if
the relationship is not beneficial. If the relationship is more an
informal one, then the new lawyer should be willing to seek assistance
from several potential mentors until a comfortable fit is assured.
Approaching the individual who seems best suited to the mentoring
role about formalizing the process might then be appropriate. Oftentimes,
the best mentor may not be an attorney’s direct supervisor. Lawyers
not in a firm, business or government agency need to be more creative
in acquiring a proper mentor to help them through their early careers.
Building a network of more experienced attorneys who are willing to
take the time to help can be difficult, but well worth the effort.
Many complaints against solo practitioners or young attorneys could
likely have been avoided if the lawyer had been able to “sound out”
a more experienced colleague before undertaking a particular action.
Following Advice Beyond
the more general mentoring that can assist a young lawyer in learning
how to practice law, more specific guidance may occasionally be needed.
A new attorney may encounter a specific ethical issue he has not faced
before, and therefore may be unsure how best to proceed. To whom can
the attorney turn for help and to what extent can she rely upon the
advice received? The MRPC envision that a subordinate lawyer may seek
the guidance of a supervisory lawyer in such situations. But,
it will be argued, supervising lawyers are not infallible. How does the attorney determine when to rely
on the directive of a supervisor to take a particular course of action?
What if the subordinate lawyer believes that a different course is
required under the Rules of Professional Conduct? In such a situation,
might an attorney’s ethical obligations conflict with the reality
of the workplace? Are such questions more in the nature of employment
law matters than issues for the Office of Lawyers Professional Responsibility?
As may readily be seen, there are likely far more questions than answers
concerning issues of responsibility for actions taken that may conflict
with the Rules of Professional Conduct. Rule
5.2 states that a subordinate lawyer is bound by the MRPC, notwithstanding
that the lawyer acted at the direction of a supervisory lawyer. The
subordinate may, however, be insulated from discipline if the lawyer
acted at the supervisor’s direction concerning an arguable question
of professional duty. The key aspect is that the ethics issue must
be arguable. Following plainly unethical advice (“It’s okay to sign
the client’s name to the affidavit that must be filed today”) will
not protect the subordinate lawyer from her own obligations. The real
difficulty for a young associate lies, of course, in sorting things
out when the demands of his employment and professional obligations
appear to conflict. How does a young lawyer say no? Here too a more
senior mentor may be able to intervene and provide guidance. Those
who lack such a mentor may of course conduct their own research of
the question, consult independent counsel,4 or contact the Director’s
Office for an advisory opinion. Questions concerning the underlying
“arguable” issue are appropriate and advice can be provided. Far
more difficult is when a subordinate lawyer inquires whether she must
follow her supervising lawyer’s directions if the subordinate finds
fault with the supervisor’s decision and believes a different course
would be preferable. The subordinate lawyer may further inquire whether
he is obligated to report the supervisor for attempting to have him
engage in allegedly unethical conduct. Such inquiries often involve
not only an ethics issue, but questions of employment law and legal
rights beyond what the Director’s Office can answer. If such a situation
truly arises, and a more neutral mentor is not available to intervene
or there is no one more senior to contact, then independent counsel’s
advice may be required. Conclusion Ultimately,
we are all responsible for our own actions. Less experienced lawyers,
however, may be unaware of the proper course of ethical conduct in
some situations. Timely advice from a mentor early in one’s career
can educate and help a new attorney avoid many such problems. A supervisor’s
decision usually can be relied upon and followed. Outside advice may
be available. When truly in doubt, there’s no need to “go it alone.”
The goal ought to be exactly as the judge proclaimed, that more experienced
lawyers will have a more relaxed and civil attitude. Notes 2 An exception is for basic character qualities, which
usually are not learned, but are part of the person before he becomes
an attorney. The Supreme Court has recognized this, stating for example
that “we believe youth and inexperience do not mitigate acts of dishonesty.”
In re Ward, 563 N.W.2d 70, 72 (Minn. 1997). 3 The University of St. Thomas, since its opening in
2001, for example, has instituted a fairly structured mentoring program
in which many respected Minnesota attorneys have participated. Groups
such as Minnesota Women Lawyers have conducted lawyer-to-law-student
mentoring programs as well. 4 Rule 1.6(b)(7), MRPC, permits disclosure of otherwise
confidential information related to the representation of a client
if the lawyer reasonably believes disclosure is necessary to secure
legal advice about a lawyer’s compliance with the MRPC. MARTIN COLE is director of the Office of Lawyers Professional Responsibility. An alumnus of the University of Minnesota and of the University of Minnesota Law School, he has served the lawyer disciplinary system for 21 years. |
