But I was following orders!

But I was following orders!

     It’s traditional graduation season, at all levels of the education gamut from kindergarten to law school. Next month, many of those law grads will take and pass the summer bar exam and be admitted to practice law.

    They then will come face to face with this harsh reality: a lawyer who works for someone else may end up having to tell his or her supervisor “no.” You know what may come next: being shown the door.

     Another version: If you do what your supervisor tells you to, an I-was-just-following-orders defense generally doesn’t work. Lawyers don’t have a blanket Nuremberg defense to unethical conduct.

     Every lawyer needs to think for himself or herself. We each -- individually -- have to comply with the Ethical Rules, no matter how we fit into employment hierarchies. Ethical Rule 5.2 addresses the responsibilities of a subordinate lawyer. ER 5.2(a) states that

A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

While we don’t have a blanket I-was-just-following-orders defense, ER 5.2(b) provides a limited defense:

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.

This means that a supervisor may assume responsibility for having made a wrong call in a gray case. But it only works if the question is not black and white. Comment [2] to ER 5.2 provides this example:

 

[I]f a question arises whether the interests of two clients conflict under ER 1.7, the supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.

 

But, 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. Id.

            The Arizona Supreme Court has construed ER 5.2 in a couple of reported cases.

In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990)

          Ockrassa, then a Kingman contract public defender, represented a client on three DUIs over a two-year period. Ockrassa then became a deputy Mohave County county attorney. In that capacity, he prosecuted his former client, who was charged with DUI as a third offense within the preceding 60 months. His former client objected to Ockrassa -- his former lawyer -- prosecuting him. The former client was convicted and Ockrassa ended up with a bar complaint.

     The Arizona Supreme Court found that the three DUIs on which Ockrassa represented the client were substantially related to the later charges on which Ockrassa served as prosecutor, saying:

The validity of his prior convictions was directly in issue. [The defendant] had disclosed his intention of asserting invalidity and insufficiency of the prior convictions as a defense.

* * *

Respondent's conduct in prosecuting [the defendant] created a substantial danger that confidential information revealed in the course of the attorney/client relationship would be used against [the defendant] by respondent, his former attorney. Although respondent claims that he does not remember the content of any such confidential communications by [his former client], the protection of the rule should not be so lightly cast aside.

Among his defenses, Ockrassa argued that he had discussed the matter with his superiors – the then-Mohave County attorney and the chief criminal deputy – who did not believe he had an ethical problem.

     The Supreme Court thought little of this argument, saying:

Respondent attempts to minimize the gravity of his conduct by placing blame ‘higher up the ladder.’ The fact that respondent's superiors did not believe that respondent's prosecution of [the defendant] presented an ethical problem does not weigh heavily in respondent's favor. Even minimal research would have disclosed that this court and the State Bar Committee on the Rules of Professional Responsibility have consistently found ethical violations in similar circumstances. In State v. Latigue, this court disqualified the entire Maricopa County Attorney's Office from prosecuting a matter due to the Chief Deputy County Attorney's prior representation of the defendant in the same matter. 108 Ariz. 521, 502 P.2d 1340 (1972). Latigue is distinguishable because it was decided under the former Code of Professional Responsibility and involved a motion for disqualification based on an attorney "switching sides" during a single criminal proceeding. Additionally, we note that the current Rules of Professional Conduct contain significant changes affecting vicarious disqualification. We believe that Latigue and the existing informal ethics opinions contain sufficiently applicable language to alert respondent to the potential ethical problems his conduct created, regardless of the opinions of his superiors.

     The court suspended Ockrassa for 90 days.

In re Alexander, 232 Ariz. 1, 300 P.3d 536 (2013)

     Alexander, who worked for the Maricopa County Attorney’s Office, was disciplined for, among other violations, knowingly maintaining a frivolous lawsuit in violation of ER 3.1. She argued, among other defenses, that she worked under another lawyer’s supervision and that another lawyer had in fact filed the lawsuit.

     In rejecting her arguments, the court said:

That Alexander worked under [another lawyer’s] supervision similarly did not reduce her responsibilities under ER 3.1. A lawyer remains bound by the Rules of Professional Conduct even when working at another lawyer's direction. ER 5.2(a). We will not find professional misconduct by the subordinate lawyer, however, “if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.” ER 5.2(b).

            We accept that when Alexander was first assigned to the RICO lawsuit she reasonably assumed [the filing lawyer] had properly investigated the RICO allegations before filing the complaint. [The lawyer’s] compliance with ER 3.1 instead turns on whether she sufficiently informed herself about the applicable facts and law to make good faith and nonfrivolous arguments in maintaining the lawsuit.

     The evidence from the disciplinary proceeding showed that Alexander was “well aware” that the RICO lawsuit was deficient. Two days before she substituted as counsel, her supervisor expressed his concerns about the complaint to her. Outside counsel advised that the complaint was “weak,” particularly as it concerned the judge defendants, and it “would have a real problem even standing up to an initial challenge.” Alexander’s own research confirmed she needed to “’beef up’ the complaint with ‘more details and facts and allegations’ in order to avoid dismissal.” She also never obtained the filing attorney’s investigative file.

      The court concluded that she could not rely on ER 5.2, saying:

Although Alexander could not identify any facts to plausibly support the RICO lawsuit and knew the complaint was, in [her supervisor’s] words, “dead on arrival,” she nevertheless filed an opposition to its dismissal. And because Alexander knew the lawsuit was frivolous, she cannot escape responsibility for her misconduct by blaming [her supervisor].

    The court concluded she had engaged in a variety of professional misconduct and suspended her for six months.

So What Do You Do?

  • Think for yourself. As discussed above, we don’t have a blanket I-was-just-following-orders defense.
  • Keep up to date on ethics and discipline issues. The court in Ockrassa seemed to say that the lawyer should have known that doing what he did was a problem because of existing cases and ethics opinions. So pay attention to developments in those areas.
  • If your supervisor tells you to do something that you think would be unethical, call the State Bar’s ethics hotline (602-340-7284) or hire private ethics counsel to ask about the propriety of your prospective conduct.
  • If you’ve already engaged in conduct that you think is questionable, get legal advice about how to deal with potential or actual legal or ethical fallout.

 

The importance of using precise ethical terms

The importance of using precise ethical terms

Witness to history? Keep it to yourself.

Witness to history? Keep it to yourself.