PROFESSIONALISM CORNER
“ Out of Sight , Out of Mind ”: Challenges of Supervision During a Pandemic
AGNIESZKA N . CHIAPPERINI
For almost one year now , remote work in the legal field has become the rule rather than the exception that it used to be , and most of us have adapted and accepted this new way of practicing . However , we must remember not to also adopt an “ out of sight , out of mind ” attitude , especially when it comes to supervisory responsibilities over other lawyers and non-lawyer staff .
Florida ’ s Rules of Professional Conduct contain specific requirements for partners and managing lawyers to make “ reasonable efforts ” to ensure that other lawyers and non-lawyer staff conform to the outlined ethics rules . See generally Florida ’ s Rules of Professional Conduct , Rules 4-5 . Rules 4-5.1 , 4-5.2 , and 4-5.3 and comments thereto provide guidance on this topic .
First , Rule 4-5.1 requires each law firm to have in place policies and procedures to ensure compliance with the Rules of Professional Conduct on a firm-wide basis , the specifics of which will “ depend on the nature of the firm ’ s practice and the structure of the firm , including taking into consideration the size of the firm and the experience level of the attorneys .” See ETHICS DURING COVID-19 , Florida Bar News ( Apr . 8 , 2020 ), https :// www . floridabar . org / the-florida-bar-news / ethics-duringcovid-19 /.
Next , Rule 4-5.2 imposes upon subordinate lawyers a duty to take responsibility for their own conduct , even when acting at the direction of their supervisors . A subordinate lawyer can “ rely on a supervisor ’ s opinion ,” provided that the conduct involved a “ reasonable resolution ” of an “ arguable question of a professional duty .”
Finally , Rule 4.5-3 deals with supervisory responsibility over non-lawyers , which includes assistants , paralegals , case managers , and other non-lawyer staff . Lawyers have the ultimate responsibility over the conduct and work-product of their non-lawyer staff . Such responsibility requires the lawyer to review conduct of , and work-product prepared by non-lawyer staff . Comments to the Rule specify that lawyers must give “ appropriate instructions and supervision .”
But how can lawyers comply with these rules and successfully supervise other lawyers and non-lawyer staff when working remotely ? As a result of the remote-work environment brought about by the pandemic , each law firm ’ s policies and procedures related to supervision had to be greatly revised , if not completely overhauled . Gone are the days of conference room meetings and cubicle huddles . Paralegals and new lawyers can no longer “ pop ” into a partner ’ s office with a question . While modern technology has given us many marvelous tools that make interaction easier than ever , there is not a one-size-fitsall solution . E-mail correspondence , phone calls , video conferences , and chat features allow lawyers and non-lawyer staff to stay reasonably connected . However , at the core of supervision is frequent and meaningful communication .
Partners and managing lawyers should create policies and procedures that require at least daily communication between supervising and subordinate lawyers to allow transparency , guidance , and a medium for answering questions , especially when it comes to lawyers that are newly licensed or working on complicated issues . There should be even more engagement between lawyers and their non-lawyer staff because the acts of the non-lawyer staff are essentially those of the lawyer . Lawyers should take a more active role in reviewing filings and correspondence drafted by non-lawyer staff , keeping track of important dates and deadlines , identifying conflicts of interest , accounting for client funds and assets , restricting disclosure of confidential client information , and ensuring confidentiality during remote communications with clients . Although these are all essential functions common to the legal industry , our environment can sometimes influence our focus , so we must not allow our presence at home to let us rest on our laurels .
Agnieszka N . Chiapperini is an attorney at Gaebe , Mullen , Antonelli & DiMatteo , where she practices mainly in the areas of insurance defense and civil litigation , including association liability , construction defect , property damage , premises and products liability , vehicle negligence , as well as insurance coverage and appeals .
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