Regulation of the Legal Profession · 6-12% of the exam
3.2.2The subordinate's position (Rule 5.2)
Every licensed attorney remains personally responsible for compliance regardless of supervisory direction. The sole exception is narrow.
Why
A license is personal. If following orders excused a violation, a firm could keep a junior on hand to absorb the risk, and the client would end up with a lawyer whose loyalty ran upward to a supervisor rather than outward to the client. This Rule keeps the answer attached to the person who acted.
Plain English
A subordinate lawyer stays bound by the Rules despite a supervising lawyer's direction. The safe harbor is narrow: acting on a supervisor's reasonable resolution of a genuinely arguable question of professional conduct does not subject the subordinate to discipline. It offers no protection for clear violations, such as destroying or concealing documents or conduct admitting no reasonable professional debate.
Rule 5.2 — Responsibilities of a Subordinate Lawyer
- A subordinate is fully bound by the Rules notwithstanding direction from a supervising lawyer
- Safe harbor: acting on a supervisor's reasonable resolution of a genuinely arguable question of professional conduct does not subject the subordinate to discipline
- No protection for clear violations:
- destroying or concealing documents, or
- any conduct that admits no reasonable professional debate
The exam will present an instruction in professional language: shred documents before production, sign a misleading affidavit. Deference to the supervisor cannot protect the subordinate when the underlying act admits no legitimate debate. Practitioners call this the no-Nuremberg-defense rule: orders from above are never a defense to a clear ethical violation.
Tip
Questions · 2
Q 01ch03-e06
Question 1 of 2 · Rule 5.2(b)
Associate is a lawyer in her second year at a firm and was assigned to represent Buyer in the purchase of a small bakery chain. Before starting, Associate found that the firm had represented Seller four years earlier in an unrelated trademark filing, and raised the question with Partner, who supervised the matter. Partner pulled the old file, compared the two engagements, and concluded that the earlier work was unrelated enough that the firm could take Buyer. Reasonable lawyers could have come out either way on that question. Associate accepted the resolution and did the work. A disciplinary complaint later argued that the firm should have declined the matter. Is Associate subject to discipline?
Keys 1 to 4 choose.