It is always a lovely feeling to having someone watching over you, looking out for you or guarding your back, so to speak. However, when being watched over becomes supervised, the concept changes fundamentally. Then we are no longer carefully viewed, watched and perhaps nurtured and nursed. Instead we are being assessed, checked, advised as to our conduct, behaviour and in some cases even performance.
We are all aware of joint and several liability and, for those of us in private practice, that stalwart principle of partnership law has always been, shall we say, a worry.
The call to be always vigilant of one's partners' conduct and behaviour in a broad sense has always resonated with me since the 1990's when I witnessed a whole law firm of 12 partners collapse after 11 finally discovered just how the conveyancing partner could actually afford a Ferrari and a large detached house in an affluent suburb.
Admittedly this is an extreme example and one should rightfully question why so many could be so blind for so long. But for lawyers, how far should responsibility for the acts of others extend? How far should vigilance and supervision actually go?
In February of this year the Solicitors Disciplinary Tribunal (SDT), on the application of the Solicitors Regulation Authority, held that two partners in a firm failed to exercise adequate or appropriate supervision of a fellow partner, contrary to rule 5 of the Solicitors Code of Conduct.
The third-party conveyancing partner was said to be a fixed-share partner by the partnership, but the SDT found that whatever title the person may have had, the partner came within the expression 'staff'' contained in rule 5.01(1).
A partner having the responsibility to ensure the adequate supervision of another partner? Will then the requirement to supervise staff now be extended to the supervision of partners? I have seventy one partners and eleven consultants in my firm divided between three cities. Are we each expected to supervise each and every partner? How could that ever be achieved?
As you would anticipate, the decision of the SDT in February rested upon the facts and circumstances of that particular partnership and the particular breach of the Code of Conduct. The decision is being appealed but, if the concept of supervision is extended in general from staff to partners (fixed or salaried), and ultimately perhaps to equity partners, heaven help us all.
