Tuesday, February 15, 2011

Non-lawyer assistant blogging: Do we care?

Recall my discussion on this blog about anonymous blogging. Legal Blog Watch addresses the issues of non-lawyers blogging anonymously. Why do we care about this? Model Rule 5.3 governs the responsibilities of Firms to regulate the conduct of their non-lawyer assistants.

Model Rule 5.3 states:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

It is clear that, under this rule, if the lawyer either knows about the anonymous blog* and ratifies it, or is a partner or manager of the non-lawyer, and knows about the anonymous blog, that the lawyer may also be responsible for the non-lawyer's conduct on the anonymous blog.

While this issue does not directly address the issue of lawyer blogging, it still implicates concerns regarding the potential ethical violations for the use of social media. Therefore, lawyers who have concern for the violation of ethical rules should not delegate this responsibility to their assistants unless the lawyer ensures that these assistants also uphold the rules of professional conduct.

Furthermore, lawyers who work in firms should be concerned about potential blogging of non-lawyer assistants. While the rule requires the lawyer to know about the blog, it would be prudent for lawyers to take active steps to ensure that their assistants are aware that their duty to uphold the Rules of Professional Conduct also applies to blogs, albeit anonymous ones.

*Assuming the anonymous blog otherwise violates Rules of Professional conduct

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