Law firm associates have obligations, too

Associates in law firms help keep the lights on. They may work long hours, sometimes on tight deadlines. They help identify answers to legal problems and typically implement the strategies envisioned by the partners for specific representations. Usually, associates do not have clients on their own, but help partners or more senior attorneys service their clients and remain under those partners' supervision.

Even though associates often serve in a junior role to partners or other senior attorneys, associates still have their own obligation to comply with professional and ethical rules. This can sometimes create a complex tension for associates, who may feel like they serve two masters: Their "bosses" at their firms, and the California Rules of Professional Conduct.

Here are five areas in which associates can take care to ensure that they are acting ethically, notwithstanding their more junior positions.

Working with Nonlawyers

Even early in their careers, many associates routinely work with and delegate work to secretaries, legal assistants, paralegals and other administrative professionals. However, the Rules of Professional Conduct warn against associates delegating work to nonlawyers and failing to monitor them. Rule 3-110 obligates members to act competently. The comments to that rule specify that this includes "the duty to supervise the work or subordinate attorney and non-attorney employees or agents."

Additionally, associates should be wary of delegating assignments to nonlawyers that could constitute the unauthorized practice of law in light of the obligations of Rule 1-300. Associates supervising nonlawyers should also take care to ensure that they are not instructing nonlawyers to do any task that the associates themselves are ethically prohibited from doing. For example, if an associate is not permitted to directly contact a witness, that associate should not instruct their assistant to do so instead. Indeed, that is generally true for attorneys of any level.

Reporting Misconduct

A common misperception among associates is that they are expected to do as they are told at work without question, and that only law firm partners are responsible for ensuring that a matter is handled ethically. However, it is a mistake for associates to turn a blind eye to ethical wrongdoing in light of their obligations under the Rules or Professional Conduct. Associates generally are not excused from violations of their professional duties by stating that they were simply following orders or relying on partners.

Associates who observe misconduct on their matters can take steps to alert others, most often the firm's internal risk manager or general counsel. This is consistent with Rule 1-120: "A member shall not knowingly assist in, solicit, or induce any violation of these rules of the State Bar Act."

Associates can protect their clients, their firms, and their own reputations by alerting internal risk managers to potential ethics or professional issues at the first sign of a problem. Staying silent about an issue because of a concern about "tattling" internally, particularly when that issue could negatively impact the client or the firm, is not advisable. Firms can also take steps to ensure that junior attorneys are aware of the firm's expectations and that such disclosures are encouraged.

Beware of Social Media

Social media has become increasingly useful for attorneys communicating with other lawyers and with actual and prospective clients. These platforms typically also allow associates to build relationships and networks in the legal community and to reach potential clients.

These benefits come with certain costs, however. For example, a personal social media profile may qualify as a legal advertisement, subject to the restrictions of the rules. Likewise, an associate could inadvertently create an attorney-client relationship or breach the duty of confidentiality by providing advice and posting information online.

Associates can also find themselves in trouble with their law firms if they unwittingly create a business conflict. Posting a personal opinion about an industry or company could result in headaches for the associate's firm that represents that industry or company. Even if such a post is not unethical under the bar rules, associates can be aware that even on personal time, their actions may reflect on their firms and their clients.

Moonlighting Can Create Risks

Many associates begin their careers in serious debt as a result of their law school education. It is not uncommon for junior associates to explore second-job opportunities to earn a little extra cash. While some may choose a second job in an unrelated field to supplement their income, associates moonlighting by performing legal services for others may face unique risks. Although some risks can be addressed through obtaining the full knowledge and consent of the law firms involved and of any affected clients, this step (which can also be quite administratively daunting) may not alleviate all potential exposure.

For example, associates transporting and working on files from their off-hours legal jobs may increase the risks of breaches in confidentiality or potential conflicts of interest when working for clients during their day jobs. Further, moonlighting creates insurance coverage risks. A moonlighting associate may trigger their primary employer firm's policy even if a representation is not directly affiliated with the firm. Even worse, an associate could be left personally liable for alleged malpractice.

Moonlighting associates also risk the second job draining their productivity and ability to meet deadlines in their day job, increasing the likelihood of mistakes or errors.

Associates can sometimes feel pulled in multiple directions when beginning their careers. It can be difficult to know how best to build a practice while working for more senior attorneys. However, associates can avoid unnecessary risk by being aware of their own unique ethical responsibilities.

Shari Klevens is a partner in the Washington, D.C. office of Dentons US LLP.

Alanna Clair is a senior managing associate in the Washington, D.C. office of Dentons US LLP.