October 2014 • Volume 102 • Number 10 • Page 502
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If: The Ethical Obligations of Subordinate Lawyers
The Rules of Professional Conduct require subordinate lawyers to exercise independent judgment about their professional obligations, even when a supervising lawyer is calling the shots.
"If you can keep your head when all about you
Are losing theirs and blaming it on you,
If you can trust yourself when all men doubt you,
But make allowance for their doubting too"
Rudyard Kipling, If -
On the Internet, every day is April Fools' Day. Social media sites teem with hoaxes, satirical news items, and flat-out falsehoods - all beseeching us to "like," "share," or tweet them.
No matter how savvy we are, it is all too easy to be taken in by an incredible1 story that needles a deep-seated fear ("Report: Average American Worker Replaced Within 10 Minutes of Taking Vacation"2 ), validates our political stance ("Obama has taken more vacation than any other president in history!"3 ), or upends our sense of order in the universe ("Kim Jong-un Named Sexiest Man Alive"4 ) - and off we go, sharing the "news" item and speeding it on its misinformation tour across the cyber-universe.
This social media disease is so widespread that Facebook is experimenting with a helpful tag - [Satire] - that will label posts from sites like The Onion so that users can "distinguish satirical articles from others."5 Some media-watchers have hailed this move as a potentially crippling blow to the Internet's hoax-news industry,6 but plenty of arrant nonsense will remain unlabeled. For all the seductive stories and weird tales that remain untagged, it's up to us to use common sense, a healthy dose of skepticism, and research tools to winnow truth from trash.
Older lawyers (like me) may muse wistfully about a time when you could believe what you read in the newspaper. But younger lawyers - including those who will soon be raising their right hands and solemnly swearing (or affirming) to uphold the State and Federal Constitution, and faithfully discharge their duties as attorneys and counselors of law7 - have grown up with the Internet, and are well aware of the need to make their own determinations of the value and veracity of every bit of information found there.
A tendency to question authority will help new lawyers live up to their ethical obligations. Most of them will begin their careers as "subordinate lawyers" who work at the direction of "supervising lawyers." And the Rules of Professional Conduct require subordinate lawyers to exercise independent judgment about their professional obligations, even when a supervising lawyer is calling the shots.
Let's review Rule 5.2 ("Responsibilities of a Subordinate Lawyer"), and explore the subordinate lawyer's duty to keep his [ethical] head, even if the supervising lawyer is losing hers.
When wrong is wrong
"You're not to be so blind with patriotism that you can't face reality. Wrong is wrong, no matter who does it or says it." - Malcolm X
"The supervising lawyer told me to do it" does not, by itself, excuse the subordinate lawyer's failure to follow the Rules of Professional Conduct. Rule 5.2(a) tells us that a "lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person." If the subordinate lawyer knows (or reasonably should know) that following the supervisor's instructions would violate the Rules, he must refuse to do so. This is true even if his refusal jeopardizes his employment.8
Wrong is wrong, no matter who does it or says it.
When right and wrong are arguable
"Oh, I don't know what's right any longer. You have to think for both of us. For all of us."
- Ilsa Lund, to Rick Blaine in the movie Casablanca9
What if there is a genuine question about what is right or wrong under the circumstances? In that case, the rules allow the subordinate lawyer to defer to the supervising lawyer's judgment. Rule 5.2(b) states that a "subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty."
The comments explain that someone has to make the call: "If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide on the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly." Rule 5.2, Comment . The subordinate lawyer still must consider what the rules require, and determine whether there is an "arguable question of professional duty." He cannot blindly rely on the supervising lawyer to do the thinking for both of them.
The problem, of course, is that the subordinate lawyer may well lack the knowledge and experience to know an "arguable" question of ethics when he sees it. Mary F. Andreoni, ARDC Senior Counsel, Ethics Education, outlines steps that the subordinate lawyer can take to address the issue:
As a starting point, the subordinate lawyer should discuss his or her concerns with the supervising lawyer. If the subordinate lawyer is still concerned that the supervising lawyer's resolution is not "reasonable," the subordinate lawyer should talk to other partners in the firm, particularly if there is a partner designated as the "ethics counsel" or if there is an ethics committee created at the firm to resolve these questions. If the subordinate lawyer continues to be concerned, the subordinate lawyer may want to consult with a professional responsibility lawyer.10
Other resources to assist the subordinate lawyer in determining the arguability of the question at hand include the ISBA Ethics Infoline (217-747-1452) and the ARDC's Ethics Inquiry Program (https://www.iardc.org/ethics.html).
And which is more - you'll be an ethical lawyer
"Yours is the Earth and everything that's in it,
And - which is more - you'll be a Man, my son!"
- Rudyard Kipling, If -
The Rules of Professional Conduct ask a lot of the subordinate lawyer. He is required to know the rules well enough not only to know right from wrong, but also to understand when a situation presents an "arguable question" under the rules. He must be willing not just to challenge his supervising attorney's resolution of an ethical issue, but actually to refuse to comply with instructions that would violate the rules, even if it puts his job in jeopardy.
But with these great burdens comes great privilege. On the very first day of his practice, the subordinate lawyer is deemed fully competent to make decisions about his own professional responsibility. In this regard, at least, he is "subordinate" to no other lawyer. He is the master of his fate, the captain of his ethical soul.11
Congratulations to the newest Illinois lawyers - here's wishing you fair winds and following seas as you chart your course in the law.
Karen Erger is vice president and director of practice risk management at Lockton Companies.
- Literally - as in "not credible." For some eye-popping examples of credulity where no credit is due, check out the website Literally Unbelievable (www.literallyunbelievable.org), which chronicles comments by Facebook users who believe (or appear to believe) satirical "news" items on the parody news website The Onion (www.theonion.com). For example, a recent Onion report entitled "Bored Kim Jong-un Stacks Entire North Korean Populace Into Human Pyramid To Kill Time" drew Facebook comments like "That's messed up, man" and "yeah, I mean, I googled it and there wasn't a lot of proof but then again north korea has some serious press restrictions so I guess we'll never really know." Let's hope against hope that these commenters are simply playing along with the hoaxers.
- See The Onion, August 22, 2014, http://www.theonion.com/articles/report-average-american-worker-replaced-within-10,36756/.
- No-o - not even close. President Obama has taken 138 full or partial vacation days since taking office. George W. Bush, at the same point in his presidency, had "spent 381 partial or complete days at his ranch in Crawford, Texas, and another 26 at the Bush family compound in Kennebunkport, Maine." Darlene Superville, "Obama Taking Less Vacation, but Too Much for Some," ABCNews.com, August 22, 2014, http://abcnews.go.com/Health/wireStory/obamas-vacations-line-us-average-25084778. And before I receive a volley of flaming email by politics-watchers of both persuasions, let's temper this statistic with some realism. For me and, I suspect, most readers of this column, the idea of a vacation in which we gleefully cast off the traces and devote ourselves exclusively to fun and frolic is a pleasant but impossible dream. Who among us hasn't taken a conference call on a beach, or ignored a scene of breathtaking natural beauty in order to respond to an "urgent" email? I have to figure that this goes double for the Leader of the Free World. As Ronald Reagan noted, "You're still president. The job goes with you." See "Reagan loves his ranch retreat - he's spent 171 days there," Ellensburg (WA) Daily Record, February 18, 1985. And before Reagan fans and foes alike start firing up the email catapult, allow me to clarify that the article just cited was written before the conclusion of Reagan's presidency - he ended up spending "all or part of 349 days at his ranch" during his two terms in office. See "How many vacation days has President Obama taken?" August 22, 2014, PBS.org, http://www.pbs.org/newshour/rundown/many-vacation-days-u-s-presidents-take/.
- This story from The Onion actually fooled the official Chinese People's Daily English language website, which "not only ran the 'Sexiest Man Alive' dispatch word-for-word, but added a 55-photo slideshow of Kim, riding a gray and white stallion and touring factories." Scott Simon, "Sexiest Man Alive Gets 'The Onion' Taken Seriously," NPR.org, December 1, 2012, http://www.npr.org/2012/12/01/166293306/the-onion-so-funny-it-makes-us-cry.
- Amit Chowdhry, "Facebook Is Testing A 'Satire' Tag Since Users Think The Onion Articles Are True," Forbes.com, August 18, 2014, http://www.forbes.com/sites/amitchowdhry/2014/08/18/facebook-is-testing-a-satire-tag-since-users-think-the-onion-articles-are-true/.
- Caitlin Dewey, "Facebook 'satire' tag could wipe out the Internet's terrible hoax-news industry," August 19, 2014, The Washington Post/The Intersect, http://www.washingtonpost.com/news/the-intersect/wp/2014/08/19/facebook-satire-tag-could-wipe-out-the-internets-terrible-hoax-news-industry/.
- 705 ILCS 205/4.
- See, e.g., Jacobson v Knepper & Moga, P.C., 185 Ill. 2d 372 (1998) (associate who claimed he was fired because he objected to his firm's practice of filing debt collection suits in an improper venue could not bring retaliatory discharge action).
- This deathless bit of wishy-washy goopiness is uttered by Ilsa Lund as she backs away from the thorny issue of who gets the coveted exit visas and chucks the problem in the lap of her former lover Rick Blaine. This quote alone justifies (in my opinion, anyway) Rick's decision to use the visas to send Ilsa and her husband to America while Rick and Captain Renault stay behind to fight for the Free French.
- Mary F. Andreoni, "Ten Ethics Questions from Young Lawyers," CBA Record, March 1998. This instructive article is also available on the ARDC's website: www.iardc.org/article_tenethicsquestions.html.
- William Ernest Henley, Invictus ("It matters not how strait the gate, How charged with punishments the scroll, I am the master of my fate: I am the captain of my soul.")