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Reason 562 to Train Employees: You're Liable for Staff Screw-Ups

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By Robyn Hagan Cain on April 10, 2013 12:58 PM

Lawyers -- especially plaintiffs' attorneys -- love respondeat superior. Superiors tend to have deeper pockets than employees; an injured person is more likely to recover from the boss than the underling.

Employers, on the other hand, dread the day they will be held accountable for their employees' tortious mistakes.

Not that lawyers aren't sympathetic. Lawyers aren't just responsible for staffers' torts, but for their run-of-the-mill screw-ups, too. As Attorney at Work noted earlier this week, a non-lawyer "staff member's error or omission can lead to a malpractice claim or disciplinary complaint just as readily as a lawyer's."

That's because the American Bar Association's Model Rules of Professional Conduct place special respondeat superior-style responsibilities on lawyers. Under Model Rule 5.3, lawyers are responsible for the conduct of the non-lawyers they employ, and must make reasonable efforts to ensure that a non-lawyer's conduct is compatible with the lawyer's professional obligations.

It's easy to fall into a Rule 5.3 trap if your staff doesn't understand the scope of lawyers' ethical obligations, so train your staff to avoid professional responsibility snafus.

First, stress the importance of confidentiality. Your staff should not be sharing information about your clients, even if that information makes for juicy gossip. When you hire a new non-lawyer, make sure that he or she understands your office confidentiality policy. Attorney at Work suggests having such employees sign a new confidentiality agreement annually during performance reviews.

Second, keep educating staffers about their ethical responsibilities. Don't stop after initial training for new hires; offer regular training, whether weekly or monthly, for all employees.

Finally, hold staffers accountable. It's up to you whether you want to employ zero tolerance or a three-strikes policy; after all, you're the one the client and/or the state bar will blame for mistakes. No matter what you choose, apply your policy uniformly to avoid employment lawsuits.

You hire staff so your firm can run more efficiently, but more employees create more opportunities for professional responsibility infractions. Remember, when managing non-lawyers in a firm, it's better to take a proactive approach to employee training. It might save you from an unpleasant conversation with an angry client or the state bar.

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