ANNOTATIONSCOMMENT
Although a lawyer is not relieved of responsibility for a
violation by the fact that the lawyer acted at the direction of a
supervisor, that fact may be relevant in determining whether a lawyer
had the knowledge required to render conduct a violation of the Rules.
For example, if a subordinate filed a frivolous pleading at the
direction of a supervisor, the subordinate would not be guilty of a
professional violation unless the subordinate knew of the document's
frivolous character.
When lawyers in a supervisor-subordinate relationship encounter a
matter involving professional judgment as to ethical duty, the
supervisor may assume responsibility for making the judgment. Otherwise
a consistent course of action or position could not be taken. If the
question can reasonably be answered only one way, the duty of both
lawyers is clear and they are equally responsible for fulfilling it.
However, if the question is reasonably arguable, someone has to decide
upon the course of action. That authority ordinarily reposes in the
supervisor, and a subordinate may be guided accordingly. For example,
if a question arises whether the interests of two clients conflict under
Rule 1.7, the supervisor's reasonable resolution of the question should
protect the subordinate professionally if the resolution is subsequently
challenged.
ANNOTATION
Annotator's note.
Rule 5.2 is similar to
DR 1-102 as it
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
that provision have
been included in the annotations to Rule 3.1.
The protection afforded by subsection (b) for a subordinate who acts in accordance
with a
supervisory lawyer's direction is not available to an attorney who failed to disclose his
client's
true identity in violation of Rule 3.3(b). However, a good-faith but unsuccessful attempt to
bring an
ethical problem to a superior's attention to receive guidance may be a mitigating factor in
superior's
determining punishment. People v. Casey, 948 P.2d 1014 (Colo. 1997).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify disbarment.
People v. Bennett, 843 P.2d 1385 (Colo. 1993).
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