Legal ethics

Supervisory and subordinate are not like doms and subs.

Now that I’ve gotten you hooked with the salacious title to the post, I’ll hit you with the boring content.

Among all the discussion that has transpired over who folks are calling the ChatGPT lawyers, who I wrote a bit about earlier this month, there has not been any real focus on who was the supervisory lawyer on the team and who was the subordinate lawyer on the team.

The end result of the June 8 hearing in that case (for which you can access the transcript here) sounded very much like the judge was not at all happy or satisfied so sanctions likely will be issued and, given that at least one of the lawyers admitted to lying about being on vacation to get an extension, the opinion might not get into RPC 5.1 v. RPC 5.2 issues at all, so I don’t see much current need to try to make those arguments for anybody today.

(But, for some bonus content, a very similar ChatGPT story seems to have now arisen in Colorado Springs. See the link.)

So, instead of talking more about those folks, I will instead grab a recent outcome of a disciplinary case in the same geographic area of the United States (New Jersey), but which has been much less publicized, as an opportunity to remind folks that there should be and are different standards under the ethics rules for supervisory lawyers and subordinate lawyers, even when both are partners in the same law firm.

(If you want that message wrapped up in a larger discussion of ethics issues related to co-counsel relationships generally, I recently did a teleconference seminar on that subject matter which you can find here and a few other places on the web.)

This New Jersey disciplinary case also is a reminder of just how excruciatingly long an amount of time can pass from a lawyer’s misconduct to the imposition of actual discipline. Here, somewhere between 8 and possibly 20 years depending upon when you think the lawyer should have known better.

If you’d like to read the full report from the fall of 2022 resulting in the recommended discipline, you can get it here.

The very short version though is this: the senior partner of the law firm had a number of intertwining business relationships with a client and enlisted the junior partner of the firm to assist in representation of that client and those jointly-owned entities and also brought that junior partner into the fold to be a very small co-owner of one of the entities.

This conduct was ultimately stipulated by the respondent to have been in violation of RPC 1.7 and RPC 1.8(a), but he did argue extensively that he was only ever acting at the direction of the senior partner and did not have nearly as much knowledge of all of the relationships involved as the senior partner did.

The senior partner never actually received any discipline for the conduct because he passed away after disciplinary proceedings were commenced against him back in 2022.

Interestingly though, despite what was argued, and despite the fact that New Jersey does have rules patterned after the ABA Model Rules, the case does not ever actually mention anything about RPC 5.1 or RPC 5.2 and how it should be applied to the circumstances.

Instead, the difference in status really only gets treated as a mitigating factor when arriving at the appropriate discipline.

Like the admonished attorney in [Aaron Scott] Gilbert, respondent
performed the various legal services for Cameron and the entities at Bonfiglio’s direction and supervision. However, unlike Gilbert, who had been admitted to the bar for just three years before he was entangled in the conflicted representation, which involved one transaction that spanned less than one year, respondent had between five and thirteen years of experience at the bar when he engaged in the conflicted representation, which spanned eight years, between 2004 and 2012, and encompassed multiple matters. During that timeframe, respondent failed to ensure his compliance with RPC 1.7. Additionally, despite his comparatively limited role in Bonfiglio’s businesses, respondent still acquired an ownership interest in CMG and, throughout his protracted involvement in that business venture from 2004 through 2010, failed to comply with the safeguards of RPC 1.8.

Nevertheless, like Gilbert, nearly a decade has elapsed since respondent’s misconduct ended and, in that time, respondent has had no additional discipline. See In re Alum, 162 N.J. 313 (2000) (after passage of eleven years with no further ethics infractions, discipline was tempered based on “considerations of remoteness”). Indeed, this matter represents respondent’s first brush with the disciplinary system in his twenty-three-year career at the bar.

Consequently, weighing the significant passage of time since the
underlying conduct and respondent’s subordinate status to Bonfiglio against the protracted nature of respondent’s conflicts of interest, we, thus, determine that a reprimand is the appropriate quantum of discipline to protect the public and to preserve confidence in the bar.

The ultimate discipline against the junior lawyer was a public reprimand but, consistent with the ultimate theme of delay, that did not actually happen until May 31, 2023.

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