In our legal malpractice cases, we generally do not assert claims against associate attorneys on the theory that they are not in charge of the direction taken or work done in the case or transaction. But that doesn’t mean that associates have no responsibility for violations of rules of procedure, ethical rules, or court orders when their names are on a pleading that draws scrutiny from a court.
On March 19, 2018, Judge Amos Mazzant in the United States District Court for the Eastern District of Texas held three associate attorneys in contempt for violating the Court’s injunctive order. In November 2016, Judge Mazzant entered an order barring a Department of Labor overtime-expansion rule from taking effect. In June 2017, lawyers for Carmen Alvarez filed a proposed collective action against Chipotle in a United States District Court in New Jersey attempting to enforce the rule. The lawyers knew about Judge Mazzant’s earlier ruling enjoining enforcement of the rule.
Chipotle brought the filing to Judge Mazzant’s attention and sought a contempt finding. Judge Mazzant found that the lawyers had “repeatedly and summarily dismissed the injunction’s bearing on them and on their clients” and that their disobedience mandated coercive action to ensure compliance with his injunction. Judge Mazzant further found that Alvarez’s lawyers “recklessly disregarded a duty owed to the court—the long-standing and elementary duty to obey its orders, including a nationwide injunction.”
The judge rejected a request by the senior lawyers in the case to limit the contempt order to them and exclude the associates on the basis that they did not have decision-making authority. Two of the associates had eight years of experience and another who signed the pleading had 35 years of experience. The judge stated: “After three years of law school and eight to 35 years of practice, a lawyer should know that signing his or her name to a document has consequences. Given their experience, avidity, and ownership of the case, it is difficult to accept that these seasoned professionals simply followed orders.”
So what should associates do? It is unclear from the opinion if an associate at any level of experience could successfully argue that he or she was “just following orders.” Must the associate risk continued employment by voicing objections to the chosen litigation strategy? Between these two undesirable choices, confronting the associate’s superiors and potentially being fired is probably better than forever having your name in the case law as someone who has been held in contempt by a court.
These types of situations arise in many different ways. A lawyer whose name appears on a pleading is responsible under Rule 11 in federal court and Rule 13 in state court to make sure it is filed in good faith after a reasonable investigation. What if the associate believes the pleading is frivolous? What about an associate who is working on a transaction and believes the negotiation strategy of the senior lawyer is unethical or even fraudulent?
The first thing to do is to ask questions designed to elicit the partner’s explanation of why the particular strategy was chosen. After all, the partner is more experienced than the associate, and there may be valid reasons for the chosen strategy that the associate may not know. Lawyers always should be asking: Is this the right move? Is this the right strategy? What will happen to us if we do it? If the associate is asking questions rather than accusing, the associate will appear to be someone trying to learn.
Assuming that that the strategy decision is not well founded, rather than just saying no, the associate can suggest an alternate course of action. If the strategy is adopted and succeeds, the associate will have advanced in the firm and shown the type of leadership that is expected of a firm partner. If the associate is fired for disloyalty, the lawyer can use that as a badge of honor in seeking the next place of employment. While some firms may not want a “rebel,” others will respect a young lawyer for doing what was right.
The bottom line is that associates are responsible for what they do. Do not think that the defense of “I was just following orders” will save you. Doing the right thing will not only make you a better lawyer but, more important, a better person.