Illinois Bar Journal

The Magazine of Illinois Lawyers

December 2011Volume 99Number 12Page 614

December 2011 Illinois Bar Journal Cover Image

Ethics/Law Office Management

The Ethical Office: Managing Nonlawyer Staff

Helen W. Gunnarsson

Managing nonlawyer staff would be important even if the Rules of Professional Conduct didn't make it a high-stakes business - and they emphatically do. Here's a look at which rules matter most to lawyer-managers and other tips about how to be a better boss.

"We lawyers focus on the job at hand: practicing law," says Peoria lawyer Tracy Litzinger. "We litigate the cases, we write the briefs, we structure the deals. We hire others to do the administrative tasks."

Whether you practice in a large firm, a small firm, as a solo, as in-house counsel, or as a government lawyer, the odds are that you rely on one or more nonlawyer assistants for at least some of your practice chores. And many of those chores require a high level of attention to detail and professionalism.

Think about your clients' and business associates' first impressions of you and your practice, for example: the assistants who answer your telephone or greet your office's visitors should project the professional air that you want others to receive when they connect with you in person. Think about contacts with opposing parties and witnesses as well as with the general public: your nonlawyer assistants must understand what is and what is not permissible to do or communicate, inside or outside your office. Think about the management and reconciliation of lawyer trust accounts: you must be certain that anyone in your office who handles monies complies strictly with RPC 1.15 as recently amended (see LawPulse, New IOLTA Requirements Effective September 1, in the September 2011 IBJ).

As a lawyer, you know that your acts must comply with the Rules of Professional Conduct. But what about the nonlawyers who assist you in your practice? What obligations do you have under the rules with respect to them, and how can you ensure that your employees remain in compliance with the rules at all times?

Don't take your staff for granted

"Lawyers have a tendency to get complacent" with respect to making sure that their staff's actions consistently comply with the Rules of Professional Responsibility, says ISBA First Assistant Counsel Melinda Bentley, who, with ISBA General Counsel Charles Northrup, presented It's Your Law License: Who Do You Trust in Your Office? at the 2011 Solo and Small Firm Conference in Springfield. "Lawyers rely on their nonlawyer assistants, and sometimes take them for granted." Training staff on an ongoing basis is essential for an ethically compliant law office, Bentley says.

RPC 5.3 governs lawyers' responsibilities regarding nonlawyer assistants. The rule provides as follows:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

The comments explain that nonlawyer assistants, whether employees or contract workers, act for lawyers when they render professional services. Lawyers must appropriately instruct and supervise their assistants about the ethical aspects of their work and should be responsible for their work product. Therefore, if a lawyer has managerial or supervisory authority over a nonlawyer assistant, the lawyer will be responsible for any conduct on the part of that nonlawyer that, if performed by a lawyer, would be a violation of the rules.

Hire carefully, train regularly

Training nonlawyer assistants in the rules of ethics can, and probably should, take place as early as drafting the job descriptions and advertisements for those positions. "If you're concerned about the duty of confidentiality," - and what lawyer isn't? - "reference it in a brief phrase such as 'Must be able to keep confidences,'" says South Elgin lawyer Lisa Nyuli. For those who will be entrusted with handling cash and other property, "Include in the job description an expectation that the employee adhere to RPC 1.15," says Litzinger. Both lawyers have managed personnel for their respective law firms for several years.

The job interview is an opportunity to assess the candidates' capacities and their receptivity to training. Litzinger and Nyuli provide some ideas for questions designed to ferret out a candidate's propensities.

Nyuli, whose practice focuses on family law with all of its attendant "juicy bits," suggests asking candidates what they would do if a prospective client with a knotty family-related legal problem came into the office. If the candidate's answer is something along the lines of a gleeful "Ooohh! Do you have people with that type of situation here?" you might assess that person as gossip-prone, with attendant difficulties in complying with the rules regarding client confidentiality, she says. Though small communities may yield a limited array of applicants, if at all possible, "Don't hire someone like that!"

Prospective employees whose responsibilities would include managing trust accounts may come into the position with no experience and no clue about what RPC 1.15, Safekeeping Property, requires. For these candidates, Litzinger suggests, "Ask in the interview whether the employee has any experience with funds segregation or making sure no commingling occurs. If not, you know you have a training responsibility there as the supervising attorney."

Once hired, whether successful candidates have prior law office experience or not, the lawyers emphasize that training must be continual. Explain the ethical rules under which lawyers must operate and stress that their conduct, too, must meet those standards at the outset of their employment.

"When someone is hired, sit down and go through what your professional responsibilities are as a lawyer and what the consequent expectations are of the employee. Explain the rules to them in plain language," Bentley says. Particularly important for lawyers in all types of practice, she believes, is to "impress upon them the duty of confidentiality and the duty of trust."

Litzinger suggests updating new and long-time nonlawyer employees alike on their ethical obligations with the same frequency as the lawyers in the firm. "We have CLE requirements with regard to professional responsibility. Lawyers might take a lunch period after attending a professional responsibility CLE seminar and get their employees up to speed on what changes have occurred."

Even if there are no changes, it never hurts to reread and review existing rules. "Set aside regular training time to reiterate, refresh, and remind your nonlawyer employees of the ethical rules," Bentley recommends.

Lead by example

Leading by example is one of the best ways to inculcate good ethical values and practices in nonlawyer employees, says Bentley. "How lawyers conduct themselves is a model for how their nonlawyer employees should conduct themselves as well. I don't think everybody needs to be stuffy, in the office, but you must behave professionally. The Rules of Professional Conduct are the guiding force of our profession. They must be taken seriously at all times."

In her Solo and Small Firm presentation, Bentley posed several hypotheticals, one of which presents the lawyer with a conflict between following the law and managing the flow of business under challenging circumstances.

Your client, Miss Q, is coming into your office to execute a will you prepared on her behalf. Your non-lawyer assistant, who is also the only notary in your office, is out sick that day. It has been very difficult to schedule this appointment with Miss Q, so you have her come in and sign the will anyway. Though not required by Illinois law, the lawyer's routine practice is to have wills notarized. A couple of days later, your non-lawyer assistant is back in the office. May you ask your non-lawyer assistant to notarize Miss Q's will and put the date Miss Q signed the will?

Bentley's hypothetical illustrates that for lawyers to expect their nonlawyer staff members to comply with ethical rules, they, too, must conduct themselves beyond reproach. For this non-lawyer assistant to notarize this signature in compliance with the Notary Public Act, Miss Q must appear in person before the non-lawyer assistant and either sign it in the assistant's presence or acknowledge that the signature is hers. 5 ILCS 312/6-101, 6-102. For the lawyer to ask the non-lawyer assistant to notarize Miss Q's signed will under the circumstances Bentley's hypothetical presents, therefore, would be asking the non-lawyer assistant to break the law. Moreover, Bentley notes, the lawyer would be violating RPCs 5.3 and 8.4 by asking the nonlawyer to engage in dishonest or fraudulent conduct.

No matter what the frustrations, and no matter how good the intentions, lawyers must not succumb to such temptations, Bentley says. "The best practice is to make sure your nonlawyer employees take their responsibilities very seriously. Assistants who are notaries have statutory duties. Just as you ask them to honor your obligations as a lawyer, they need to be able to expect you to honor their responsibilities. The Notary Act doesn't say that you can take your boss's word for something."

Any other course of action not only puts nonlawyer employees in a very uncomfortable position but also sends them a loud and clear message that cutting corners on legal and ethical obligations is acceptable in order to get the work done. And allowing efficiency to trump ethics is a mistake that will set a lawyer on course for defending an ARDC complaint, as many of the case summaries in Bentley's and Northrup's materials show.

Communicate, communicate - and that includes listening

Good communication is another key to an ethical office. Litzinger points out that RPC 5.3(c)(2) permits a lawyer to correct conduct on the part of a nonlawyer employee that would, if uncorrected, be a rules violation imputed to the lawyer. But for lawyers to be able to mitigate their staff's mistakes, it's crucial to maintain open channels of communication.

"We like to say that there's no problem we can't fix if we know about it. But if your employees are afraid to communicate with you about substantive errors, they're going to hide them from you. Then you can't take any steps to eliminate the resulting problems."

Being a good manager, then, ranks high on the list of necessary qualities for a lawyer to maintain high ethical standards. "Ideally, employers provide employees with the tools that are necessary for success," says Litzinger, who, with her partner Leonard Sachs presented Hiring For Keeps and Eight Rules for Good Dismissal at the 2010 Solo and Small Firm Conference.

"Those tools include arming them with knowledge," that is, training them in the Rules of Professional Conduct, "and providing them with a mechanism to report problems. If your reporting mechanism is ineffective because of your management style, it's the same as not having a mechanism at all."

Nyuli, who presented Managing Employees in a Law Firm: Reducing the Risk of Ethical Violations and Managing for Better Performance at the 2009 Solo and Small Firm Conference, has much to say on effective management methods. She says her firm has found that regularly soliciting feedback from nonlawyer employees has helped her and her partners ensure that their office procedures remain in compliance with the rules.

"We conducted an analysis of our firm procedures in early 2011. Our employees told us that feeling like they were part of the team helps them to comply with office protocols."

Nonlawyer employees resent being told without explanation that they must do things a certain way, Nyuli says. For that reason, when her firm considers from time to time whether and how to modify or refine its procedures, "We engage them in the process. We tell them when we're having a problem with missed deadlines, conflict checking, or what have you, and we ask them 'What can we do to make things more efficient? What do you think would make this a better system?'

"Attorneys tend to think of the fix and impose it on the employees, but the employees are the ones who actually have to deal with it. They have opinions and ideas, too." Soliciting input is particularly important when implementing a new software system or making some other major change in an office, she says.

Take your manager's role seriously

Nyuli believes that even solo practitioners with as few as one employee should have an employee handbook that sets forth the minimal expectations of employment. But for those who don't, she suggests, "Have a checklist."

That checklist might address such common questions as what the lawyer's employees should do when a client calls and says, "I haven't heard from my lawyer. What's going on in my case?" Other matters appropriate for checklists might be what staff should tell callers when the lawyer is out of the office and who employees are to contact in the event of vari­ous problems.

Though lawyers may be confident that they've trained their nonlawyer assistants adequately and that those staff members understand their jobs, they must guard against complacency. "When it comes to what's going on in the office, we attorneys tend to put blinders on. We may deal with client drama just fine, but we may not deal so well with office drama," says Nyuli. "Lawyers sometimes ignore problems until it's way too far into the game."

Finding the right balance between obliviousness to office problems that may be pointing a lawyer's practice toward violations of the Rules of Professional Conduct and unproductive micromanaging can take some practice. Nyuli says "I want to have open communication with my staff, but I also don't want to hear every single complaint about every single thing every day."

To strike that balance, Nyuli advises lawyers to be mindful of their office surroundings and what their clients are saying. "If you hear your employees giving legal advice, or your clients are complaining about your employees, then you have to address the problems." But for employees who have established that they know what they're doing, "Let the nonlawyer employee do his job and help you out," she says.

Nyuli makes two exceptions to her rule of no micromanaging: employees responsible for the calendaring system and those who handle lawyer trust accounts. With respect to the former, Nyuli says, "I check my secretary and she checks me to make sure I'm not missing any dates."

With respect to trust accounts, she says, "The risks are way too great. If you're just letting your bookkeeper or secretary handle the trust account and not reviewing it yourself, you can get into a lot of trouble."

Adds Bentley, "Most lawyers are not accounting majors and like to delegate those tasks to other people. It's fine to enlist help from a professional, but it doesn't absolve you of your responsibilities. If you haven't been doing your minimum quarterly checks of preparing and maintaining the reconciliation reports, not to mention the other requirements of RPC 1.15, you have violated the rule."

Remember, Bentley says, "It's your license on the line. You need to educate your employees continually about the importance of complying with the Rules of Professional Conduct." Maintain a consistent air of professional responsibility in your office and your nonlawyer assistants will be far more likely to conduct themselves in accordance with the Rules of Professional Conduct, just as you do.

Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.

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