The New York Law Journal by David G. Keyko - May 1, 2008
In addition to knowledge of the law and the legal process, attorneys' stock in trade is offering good judgment. Sound judgment often seems to correlate positively with gray hair an maintaining a chain of command is important for effective management. Consequently, junior lawyers regularly defer to the judgment of more senior lawyers.
Junior lawyers cannot forget, however, that they owe duties not just to their superiors, but to themselves, the judicial system and the practice of law itself. A lawyer will not be excused from a violation of the Code of Professional Responsibility merely because her participation in clearly unethical conduct was the result of an order from a more senior lawyer.
If a supervising lawyer asks a subordinate to draft a legal argument that seems to be a loser, the junior attorney can and should rely on case law and her own persuasiveness to try to convince the senior lawyer to take a different tack. If that fails, she may draft the brief as directed, provided the cases on point are disclosed and the brief does not contain misrepresentations. A superior is usually within his prerogative to decide on a legal strategy, even one the subordinate believes will not work. If the superior, however, demands that the subordinate take action that is plainly unethical, that is when the subordinate must put her foot down.
DR 1-104(E) and (F) state: E. A lawyer shall comply with these Disciplinary Rules notwithstanding that the lawyer acted at the direction of another person. F. A subordinate lawyer does not violate these Disciplinary Rules if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
Two recent cases illustrate the fate that can befall an attorney who just "goes along with orders." In Qualcomm v. Broadcom, the plaintiff produced over 300,000 pages of documents the court believed were called for by defendant's document requests - but only after the jury trial was over. A California federal magistrate judge sanctioned three associates, including a junior associate, and referred them to the state bar for investigation as the result of their involvement in the document review. (This decision, however, has been overturned by the district court judge and returned to the magistrate judge for further consideration because the magistrate judge improperly refused to permit the lawyers to disclose confidential client information to defend themselves.)
One of the specific actions for which the junior associate was sanctioned was not raising the prospect, upon discovering responsive, unproduced documents, that the entire document search might have been flawed. In another case, a partner faces sanctions and has been temporarily suspended from practice before the Southern District of New York pending appellate review for, among other things, not complying with an order that she return confidential deposition transcripts in a case that she voluntarily dismissed. The partner told a first-year associate to write on transcripts so that they could be claimed to be attorney work product. The associate complied (although the partner later argued she was only joking), but quickly reported the incident to firm management. The associate was not sanctioned. A junior partner involved in the case who followed the senior partner's directions that the court considered improper also was sanctioned. The junior partner, however, has not been suspended from practice.
An attorney who is directed to take unethical actions has a few options in addition to refusing immediately to take the action: First, the attorney can explain to the assigning attorney that he has reservations, and the basis of those reservations. If either there is an arguable ethical issue and the superior gives a reasonable explanation or the command is rescinded, the subordinate lawyer is in the clear. For example, if the subordinate is concerned about a potential conflict of interest, and the supervisor explains that the appropriate waivers are in the mail, the subordinate would be unlikely to face problems, even if it turns out later that the waivers were flawed or never received. On the other hand, many unethical actions are not in a gray zone and so no reasonable explanation is going to be possible. A direction to forge the client's signature on an affidavit is such an action. The explanation, "Don't worry, the client has reviewed the document and authorized you to sign on her behalf," no matter how sincerely said, will not excuse the forgery. An instruction to reinsert surreptitiously language into a draft contract that had been removed by agreement and not to tell the other side about the change, is another example.
Second, the subordinate lawyer can bring his concerns to a senior attorney within the organization. It is good practice for law firms, legal departments and government agencies to designate senior attorneys to whom ethical concerns may be brought on a confidential basis, with the understanding that there will be no repercussions for seeking such counsel. Encouraging this sort of internal "whistleblower" behavior is not just a good way to make junior lawyers feel comfortable, it can afford protection from a misguided senior lawyer who is about to take action that could expose the firm or business to embarrassment and liability. If the lawyer works for a company, consultation with the business' outside counsel may also be a possibility. The senior attorney who is consulted may be able to advise the junior attorney on the proper course of action, explain why the action is acceptable, or speak to the lawyer who has given the questioned order with more authority than the junior lawyer can.
Finally, as a last resort, the attorney may wish to call the New York City Bar Ethics Hotline (212-382-6624), direct a written inquiry to the New York State Bar Association at email@example.com, or retain counsel. Such requests for advice can not be made on an anonymous basis. So, when seeking such guidance, the lawyer should be careful not to reveal client confidences or secrets or breach confidentiality orders. Making public disclosure of the issue is usually not an appropriate option. Lawyers working for private firms do not generally have whistleblower protection and may be limited to a breach of an implied contract claim if discharged. While lawyers may have obligations under DR 1-103 to disclose unethical conduct of fellow lawyers, they may not do so if the knowledge is not protected as a client confidence or secret, i.e., disclosure will embarrass a client.
David G. Keyko is a litigation partner at Pillsbury Winthrop Shaw Pittman in New York. Ryan G. Kriger, a litigation associate at the firm, assisted in the preparation of this article.