Washington Lawyer - January/February 2025 - 40

SPEAKING OF ETHICS
A Lawyer May Delegate
But Not Abdicate
By Nakia Matthews
A
fter two years at a large firm,
Laila Lawyer started a firm
with two friends from law
school.
Laila heads the family law practice. One friend
manages the criminal law practice, while the
other manages the contract/compliance law
practice. They hire three nonlawyer assistants: a
paralegal, an investigator, and an administrative
assistant. They also work with two contractors:
a social worker and an accountant. As managing
partner, Laila requires the contractors and
employees to sign an agreement that they will
abide by the D.C. Rules of Professional Conduct.
During a particularly busy time at the firm, Laila
asks the social worker to meet with a client in a
family law matter. During the interview, the client
discloses to the social worker that she regularly
leaves her young children home alone for
a half-hour in the morning because she needs
to leave for work early; her neighbor then stops
by to pick the kids up for school. The client also
says that she believes her husband is hiding
money from her in anticipation of the divorce
and custody case. The social worker forwards
information from the meeting to the investigator
so he can get background on the opposing
party before Laila assesses the case and decides
on next steps.
The investigator starts by reviewing the husband's
social media and finds that the husband's
accounts are private. Realizing his brother
belongs to the husband's fraternity, the
investigator creates a page using his brother's
information to gain access to the husband's social
media pages.
After the meeting, the client pays her advance
fee to the social worker. Any advance fee is usually
given to the administrative assistant, who
deposits it. However, he was on extended family
leave, so the social worker deposits the fee
40 WASHINGTON LAWYER
* JANUARY/FEBRUARY 2025
into the firm's operating account. The social
worker then contacts her friend at the D.C.
Child and Family Services Agency (CFSA)1
who
is also a social worker to discuss the possible
implications of the mother leaving the children
home alone for short periods of time.
SUPERVISING NONLAWYERS
Nonlawyer assistants are vital to the provision
of legal services. The term " nonlawyer assistant "
encompasses positions from secretary to social
worker to private investigator. The Rules of Professional
Conduct acknowledge the importance
of nonlawyer assistants and likewise the
responsibility of lawyers to train and supervise
them.
A lawyer who employs, retains, or is otherwise
associated with a nonlawyer is responsible for
the nonlawyer's conduct.2
Rule 5.3 divides this
obligation into three categories. First, a managing
lawyer (or lawyers) must put measures in
place to ensure that the nonlawyer's conduct is
compatible with the Rules of Professional Conduct.
Second, the lawyer with direct supervisory
authority over the nonlawyer must make
sure that the nonlawyer's actions are aligned
with the Rules. Third, the lawyer with direct supervisory
authority over the nonlawyer assistant
will be held responsible for the conduct
of the latter if:
(1) The lawyer requests or, with knowledge of
the specific conduct, ratifies the conduct
involved; or
(2) The lawyer has direct supervisory authority
over the person, or is a partner or a
lawyer who individually or together with
other lawyers possess comparable managerial
authority in the law firm or government
agency in which the person is employed,
and knows of the conduct at a
time when its consequences can be
avoided or mitigated but fails to take reasonable
remedial action.
In other words, if the lawyer directs the nonlawyer
to engage in prohibited conduct or
knowingly fails to stop the conduct or mitigate
the harm caused by the conduct, the lawyer is
ethically responsible for the conduct.
ETHICAL PERILS
It was permissible for Laila to delegate the initial
client meeting to the social worker. A nonlawyer
assistant meeting with clients without the lawyer
present does not violate the Rules of Professional
Conduct. It is expected that nonlawyer
assistants will speak with clients. Those discussions
may range from a benign conversation
wth a client to schedule a meeting to a client
meeting with a social worker or investigator to
assist the lawyer in gathering information.
Nonlawyer assistants share in the protections
and burdens of Rule 1.6.³ Therefore, the supervising
lawyer must ensure that the employees
and those who associate with the firm are
aware of their obligation to protect the confidences
and secrets of the firm's clients. Rule
1.6(f) states in part that " a lawyer shall exercise
reasonable care to prevent the lawyer's employees,
associates, and others whose services
are utilized by the lawyer from disclosing or using
confidences or secrets of a client. "
The conversation between the social worker
and Laila's client is protected by Rule 1.6 confidentiality
because the social worker is part of
the firm and acts at the direction of the lawyer.4
The social worker's conversation with her friend
at CFSA is a breach of Rule 1.6. The social worker
should have checked with the attorney before
talking to anyone outside the firm about
the case. Although presenting a question to
someone outside the firm in the form of a hypothetical
question without identifying information
may be acceptable in some scenarios,
the lawyer should always know of any inquiry.
In this scenario it could be very harmful to the
client because generally social workers are
mandatory reporters.5
However, social workers
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