whitman smith smith smith, C CT 06510-1232 REB.

0790307

ACTIVE 12/1/2023 11/30/2024

Civil penalty for violation of hazardous waste program. Any per-

son who violates any provision of the state's hazardous waste program
shall be assessed a civil penalty of not more than twenty-five thousand
dollars for each day such violation continues. The Attorney General,
upon complaint of the commissioner, shall institute a civil action to re-
cover such penalty. Any amount recovered shall be deposited in the
General Fund.

Sec. 22a-133ee. Liability of owner of real property for pollution

that occurred or existed prior to taking title. (a) Notwithstanding any
provision of the general statutes, and except as provided in this section,
no owner of real property shall be liable for any costs or damages to any
person other than this state, any other state or the federal government,
with respect to any pollution or source of pollution on or emanating
from such owner's real property that occurred or existed prior to such
owner taking title to such property, provided:
(1) The owner did not establish or create a condition or facility at or
on such property that reasonably can be expected, as determined by the
Commissioner of Energy and Environmental Protection, to create a
source of pollution to the waters of the state for purposes of section 22a-
432 and such owner is not responsible pursuant to any other provision of
the general statutes for creating any pollution or source of pollution on
such property;

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 (2) The owner is not affiliated with any person responsible for such
pollution or source of pollution through any direct or indirect familial re-
lationship, or any contractual, corporate or financial relationship other
than that by which such owner's interest in the property was conveyed or
financed; and
(3) The Commissioner of Energy and Environmental Protection has
approved in writing: (A) An investigation report regarding such pollu-
tion or sources of pollution, provided the investigation was conducted in
accordance with the prevailing standards and guidelines by an environ-
mental professional licensed in accordance with section 22a-133v; and
(B) a final remedial action report prepared by a licensed environmental
professional that demonstrates that remediation of such pollution and
sources of pollution was completed in accordance with the remediation
standards in regulations adopted pursuant to section 22a-133k. Prior to
the initiation of an investigation or a remediation undertaken to meet the
criteria of this section, an owner of the subject real property shall notify,
by certified mail, the owners of the adjoining properties of such initia-
tion. Such reports shall be forwarded, by certified mail, to the owners of
the adjoining properties.
(b) This section shall not relieve any such liability where (1) an owner
failed to file or comply with the provisions of an environmental use re-
striction created pursuant to section 22a-133o for such real property or
with the conditions of a variance for the real property that was approved
by the commissioner in accordance with regulations adopted pursuant to
section 22a-133k, or (2) the commissioner, at any time, determines that
an owner provided information that the owner knew or had reason to
know was false or misleading or otherwise failed to satisfy all of the re-
quirements of subsection (a) of this section. Nothing in this section shall
be construed to relieve an owner of any liability for pollution or sources
of pollution on or emanating from such property that occurred or were
created after the owner took title to such property. Nothing in this sec-
tion shall be construed to hold an innocent landowner, as defined in sec-
tion 22a-452d, who meets the requirements of this section liable to this
state for costs or damages in an amount greater than the amount that an
innocent landowner may be held liable pursuant to section 22a-432.

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 (c) If an owner of real property is found to be liable under this section
because the owner is affiliated with the person responsible for the pollu-
tion or source of pollution, as provided in subdivision (2) of subsection
(a) of this section, such owner shall be liable for a civil penalty of one
hundred thousand dollars or the cost of remediating the pollution or
source of pollution, whichever is greater.

Virginia A. Brown, Pro Se

396 Erskine Road

Stamford, CT 06903

(914) 275-1174

Vbrown12181236@gmail.com

DOCKET NO.:TBD

THE ESTATE OF THEODORE J. : SUPERIOR COURT

SIEBERT, VIRGINIA A. BROWN,
EXECUTRIX FOR THE ESTATE
OF THEODORE J. SIEBERT AND
AS INDIVIDUAL
Plaintiffs
: JUDICIAL DISTRICT OF
STAMFORD/NORWALK
: AT STAMFORD
:

V. :

CYNTHIA SMITH, ESQ., KEVIN
WALSH, ESQ., WHITMAN, BREED,
ABBOTT, AND MORGAN, LLC.
Defendants
COMPLAINT FOR:
: FRAUDULENT MISREPRESENTATION,
NEGLIGENT MISREPRESENTATION,
: BREACH OF COVENANT OF GOOD
FAITH, NUISANCE,
:

: October 12, 2023

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 TABLE OF CONTENTS

I. THE PARTIES………………………………………………………………………

A. THE PLAINTIFFS………………………………………………………………

B. THE DEFENDANTS……………………………………………………

II. VENUE and JURISDICTION……………………………………………………

III. INTRODUCTION……………………………………………………

IV. COMMON ALLEGATIONS…………………………………………………

V. PRAYER FOR RELIEF…………………………………………………………

VI. EXHIBITS……………………………………………………………………

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 PLAINTIFFS

.1. Virginia Brown is the daughter of, and Executrix for, The Estate of Theodore J.

Siebert and an individual whose principal residence is located in Stamford, CT 06903.

2. The late Theodore J. Siebert, was an individual whose principal residence was

located at 396 Erskine Road, Stamford, CT 06903, until his death on March 03, 2019.

. DEFENDANTS

3. On information and belief, and on that basis allege, that at all relevant times,

Cynthia Smith is a real estate attorney and partner at the law firm Whitman, Breed, Ab-

bott, and Morgan, LLC., with principal address at 500 West Putnam Ave., Greenwich,

CT 06830.

4. At all times relevant herein, Cynthia Smith is an attorney licensed to practice

law in the State of Connecticut and was practicing law.

5. . At all times relevant herein, Cynthia Smith is an attorney licensed to practice

law in the State of Connecticut and was practicing law.

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 6.. On information and belief, Kevin Walsh is an attorney and partner at the law

firm Whitman, Breed, Abbott, and Morgan, LLC., with principal address at 500 West

Putnam Ave., Greenwich, CT 06830.

7. At all times relevant herein, Kevin Walsh is an attorney licensed to practice

law in the State of Connecticut.

8. On information and belief, and on that basis allege, that at all relevant times, that

Defendant, Kevin Walsh, is the principal, agent, managing partner, officer, director, con-

trolling shareholder, subsidiary, affiliate, parent corporation, successor in interest, and/

or predecessor at Whitman, Breed, Abbott and Morgan, LLC., in interest of some or all

of the other Defendants, and was engaged with some or all of the other Defendants in a

joint enterprise for profit, and bore such other relationships to some or all of the other

Defendants so as to be liable for their conduct with respect to the matters alleged

herein.

9. On information and belief, and on that basis allege, that at all relevant times,

Whitman, Breed, Abbott, and Morgan, is an Limited Liability Company law firm located

at 500 West Putnam Ave., Greenwich, CT 06830.

10. On information and belief, and on that basis allege, that at all relevant times,

Cynthia Smith, is an individual, with residence at 93 Parsonage Road, Greenwich, CT.

06830.

11. On information and belief, and on that basis allege, that at all relevant times,

Kevin Walsh, is an individual, with residence at 15 Canoe Trail, Darien, CT. 06820.

JURISDICTION AND VENUE

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 12. The jurisdiction of this court arises pursuant to Connecticut General Statutes Title

51. § 51-345 which states "all civil process shall be made returnable to a judicial district,

as follows: If either the plaintiff or defendant resides in the town of Darien, Greenwich,

New Canaan, Norwalk, Stamford, Weston, Westport, or Wilton, the action may be made

returnable at the option of the plaintiff to either the judicial district of Stamford-Norwalk

or the judicial district of Fairfield.

12. Stamford-Norwalk at Stamford is the proper venue as it is the judicial district

where the plaintiff and defendant's address is located; as well, the jurisdiction of this

court arises pursuant to 15 U.S.C. 1692k(d), which states that such actions may be

brought and heard before “any appropriate United States district court without regard to

the amount in controversy”, and 28 U.S.C. 1367 grants this court supplemental jurisdic-

tion over the state claims contained therein.

COMPLAINT

13. Plaintiffs commence this suit against Defendants seeking restitution for, but not limited to,

the damages endured and continue to endure, after the unauthorized purchase of Plaintiffs resi-

dential property, Multiple Listing Service Number - 99153470 (MLS #) by the Defendants.

14. On February 16, 2017, a signed contractual agreement was entered into whereby

the Defendants would represent Plaintiffs in the purchase of residential property, MLS

399153470 (MLS #), aka, 396 Erskine Road, Stamford, CT 06903, herein after known

as the “Property”.

15. In the interim of completing the CT Residential Real Estate Agreement the sell -

ers informed all parties that two underground oil tanks (Tank 1, Tank 2) had been re-

moved from the Property and both tanks had leaked oil into the surrounding areas.

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16. CT DEEP set the

16. Tank 1, located in the front of the home, showed contamination levels within Con-

necticut Department of Energy and Environmental Protection’s (CT DEEP) acceptable

standards (74 mg/kg). Tank 2, located in he rear of the home, show significantly high

levels of contamination (39,0000 mg/kg). (CT DEEP cut off limit 500mg/kg)

17. According to a CT DEEP Supervisor, Gil Richards, the high level of contamination

released from tank 2 and its close proximity to the property’s well, the area would now

be designated a “Significant Environmental Hazard, in which case the CT DEEP Emer-

gency Response Team would be deployed to assess the situation.

18. In CT, all underground oil tanks which are found to be compromised and leaking

oil must be reported to CT DEEP and clean up begun.

19. A tank labeled as a “Significant Environmental Hazard” should immediately be re-

ported so the CT 20.

20. R Plaintiffs, upon learning of the tanks compromise informed all parties “purchase

of the property was contingent on all contamination being removed from property”.

21. State and Federal rules and regulations are in place to oversee the removal of

underground oil tanks, leaking or not. See CT Department of Energy and Environmental

Protection (CT DEEP), Regulations of Connecticut State Agencies, TITLE 22a. Envi-

ronmental Protection Agency (EPA), CT DEEP, Subject Underground Storage Tank

System Management Inclusive Sections §§ 22a-449(d)-1 -22a-449(d)-113).

22. Sellers agreed to continue remediation. New soil samples were sent for testing.

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23. Defendants assured Plaintiffs, in writing, tank removal documentation as well as

documented verification showing all remediation work was performed according to CT

rules and regulations would be obtained prior to closing.

24. The “Property” inspection revealed issues with the drinking water, the source be-

ing a well located on the south side of the Property. Initial water test results reported

non potable water.

25. This issue was to be addressed by sellers and repeat water tests were to follow.

26. The home inspection also revealed an issue with one of the two septic systems on

Property. The septic system located on the east side showed signs of failure.

27. Defendants make a note to themselves which and discuss with Plaintiffs,

“Straight sewage, 2 separate units, escrow 18-$30k

28. Plaintiffs engaged their own independent septic company, Bill Roy, whom scope d

the system and found issues as seen in he’s report , Escrow $30.

29. Seller Septic company found no issues with system.

30. It was agreed a independent septic company would evaluate system and their

findings and recommendations would the final say.

30. Palladino and Sons Septic performed the third independent cspection and found

three areas of concern. Total repair cost $1860.00. All septic work was to be com-

pleted prior to closing and paid by sellers. Palladino never performed the repairs

31. As Duff is continuing to remediate and we and awaiting soil sample test results a

closing date of June 2 , 2017, is scheduled .

32.

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14. Although Virginia Brown's name and signature were not incorporated into the

agreement it was understood by all Defendants that most, if not all, communication and

interactions would be with Virginia Brown on behalf of Theodore Siebert.

Virginia Brown would be the primary contact for this transaction.

15. After the CT Residential Sales agreement had been executed Plaintiffs were in-

formed two underground oil tanks had been removed, both of which leaked oil into the

surrounding .

Soil test to determine the extent of contamination.Tank 1, located in the front of the

home,

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COUNT ONE- NUISANCE
COUNT ONE

NUISANCE

XX. Plaintiffs re-allege and incorporate herein by this reference each and every alle-

gation set forth in Paragraphs 1 through XX of this Complaint as though set forth fully

herein.

Xx. By acts and omission and negligence described above, Defendants has affirma-

tively placed the Plaintiffs in an environment which is the essence of a private nuisance.

Xx. Defendants had a duty to protect Plaintiffs from unreasonable harm, that of

toxic vapors and hazardous materials and water located on the “Property”.

Xx. Defendants breached that duty by failing to investigate CT DEEP regulations.

And failing to ensure those regulations were adhered too.

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Xx. Defendants conduct was the proximate cause of unreasonable interference with

the plaintiffs use and enjoyment of their property. General Motors Corp v Detroit, 372

Mich. 234; 126 N.W.2d 108 (1964), cert den 377 U.S. 977 (1964).

Xx. This nuisance is temporary in nature and will end with remediation.

Xx. Plaintiffs re allege and incorporate herein by this reference each and every allega-

tion set forth in Paragraphs 1 through XX of this Complaint as though set forth fully

herein.

Xx. Plaintiffs incorporate here, with private nuisance, a claim for non-trespassory inva-

sion.

Xx. Pursuant to the Restatement, an individual is subject to liability for private nuisance

for a non-trespassory invasion of another's interest in the private use and enjoyment of

land if (a) the other has property rights and privileges in respect to the use or enjoyment

interfered with, (b) the invasion results in significant harm (c) the Individuals conduct is

the legal cause of the invasion, and (d) the invasion is either (i) intentional and unrea -

sonable, or (ii) unintentional and otherwise actionable under the rules governing liability

for negligent, reckless, or ultra-hazardous conduct. 4 Restatement Torts, 2d, §§ 821D-

F, 822, pg. 100-115.

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Xx. By the acts and omissions and described above, the invasion of toxic chemicals

and vapors into the air, soil, and water, in and around, and under Plaintiffs home, De-

fendants’ have affirmatively placed the Plaintiffs in an environment which is the essence

of a private nuisance.

Xx. Defendants had a duty to protect Plaintiffs from unreasonable harm from the toxic

vapors and hazardous materials and water located on the “Property”.

xx Plaintiffs began importing bottled water after water test, performed by the City of

Stamford, showed non potable water. Results were once again confirmed by Find-

erdck, who incidentally read the sellers final water report and determined the sample

taken for final testing was retrieved from a reverse osmosis hookup, located in the

kitchen of the home.

Xx. Described at its basic level, a reverse osmosis system is a high quality filtration

system capable of filtering out contaminates.

Xx. Plaintiffs were not privy to hard copy final lab results prior to closing, in fact the

“Property” closing binder was not delivered to Plaintiffs for months after Defendant

closed without our knowledge or consent.

xx Defendants should have exercised diligence at all times when obtaining and present-

ing accurate information to Defendants.

XX. The Defendant knew or should have known that its acts, omissions or negligence

specifically endangered Plaintiffs, and Defendant was deliberately indifferent.

Xx. Plaintiffs have been damaged and deprived and seek damages for less than in-

stallation of public water line, to ensure home is equipped with potable water and safe

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water in which to bathe, cost of bottled water, as well as damages for deprivation of

home enjoyment and use.

failing to ensure site was registered with the CT DEEP and properly being responded to,

failing to read and access the “UST SPILL CLOSURE REPORT,” prepared by Hy-

droEnvironmental Solutions, Inc., and lab results, which contradicts itself by stating

“no further action needed” when soil test results show unacceptable levels of hazardous

material (Exhibit xx)

Xx. Defendants also breached their duty to Plaintiffs by failing to warn Plaintiffs about

the immediate dangers at the site as well as possible long term effects of being exposed

to such toxins as well as the the development of cancer.

Xx. Recommending, allowing and urging Plaintiff to occupy the “Property” knowing

toxic vapors and hazardous materials and water still remained on site has interfered

with the use and enjoyment of Plaintiff’s land.

Xx. Plaintiffs were unaware of toxic vapors and soil test result when they occupied

the property.

Xx. Plaintiff is unable to occupy or enjoy her master bedroom or that southernly sec-

tion of the home due to toxic vapors and and hazardous contaminated soil.

Xx. It is the duty of every person to assure reasonable use of one’s own property so

as to occasion no unnecessary damage or annoyance to his neighbor (Bristol v. Tilcon

Minerals, Inc., 284 Conn. 55, 87–88, 931 A.2d 237 (2007).

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Xx. Defendants had not communicated in any way the final soil or water results. It was

not until that Plaintiff sent file, via post, for viewing that test results appreciated.

Xx. Plaintiffs are unable to enjoy that parcel of land upon which harmful toxic vapors

and hazardous materials and water remain.

Xx. The location with the highest level of contamination (vapors and soil), as can

seen in lab results provided in the UST Spill Closure Report, is at the far south east of

the home and is designated as the Plaintiffs master bedroom.

Xx. Plaintiff is unable to occupy or enjoy her master bedroom or that southernly sec-

tion of the home due to toxic vapors and and hazardous contaminated soil.

Xx. It is the duty of every person assure reasonable use of one’s own property so as

to occasion no unnecessary damage or annoyance to his neighbor (Bristol v. Tilcon

Minerals, Inc., 284 Conn. 55, 87–88, 931 A.2d 237 (2007).

x Plaintiffs began importing bottled water after water test, performed by the City of

Stamford, showed non potable water. Results were once again confirmed by Find-

erdck, who incidentally read the sellers final water report and determined the sample

taken for final testing was retrieved from a reverse osmosis hookup, located in the

kitchen of the home.

Xx. Described at its basic level, a reverse osmosis system is a high quality filtration

system capable of filtering out contaminates.

X. Plaintiffs have been damaged and seek restitution

COUNT TWO - NEGLIGENCE

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XX. Plaintiffs re-allege and incorporate herein by this reference each and every alle-

gation set forth in Paragraphs 1 through XX of this Complaint as though set forth fully

herein.

XX. Defendants had a duty to protect Plaintiffs from unreasonable harm and from toxic

vapors and hazardous materials and water located on the “Property”.

Defendant was negligent in not evaluating and discussing lab data with Plaintiffs.

Defendant was negligent in refraining from sharing final lab data with Plaintiffs.

Defendant closing without Plaintiffs knowledge, consent or power of attorney was

grossly negligent. Not affording Plaintiffs time for final discussion is reprehensible .

Defendants had a duty to disclose Plaintiff final lab reports.

Defendants had duty to communicate with Plaintiffs prior to closing so Plaintiff could

make and informed decision about purchasing the Property.

Plaintiff had stated at initial find of contamination, that purchase of the Property was

contingent on all soil being remediated.

It was reckless to recommend Plaintiff move into home with contamination still present.

Defendant was reckless in not determining what level of contamination remained on the

Property before recommending Plaintiffs move in. And if Defendant did read lab reports

showing high levels of contamination coupled with toxic vapors it was criminal to allow

Plaintiffs to move in.

Plaintiff relied on Defendants to have their best interest and keep them safe from toxic

materials.

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Defendant is liable for their negligent performance and the court should impose

Defendants liable especially where the injury to a person is foreseeable.

Defendants action and omission where a direct, proximate and foreseeable cause of

Plaintiffs injuries.

COUNT THREE - NEGLIGENCE

Plaintiffs re-allege and incorporate herein by this reference each and every allegation

set forth in Paragraphs 1 through XX of this Comp

laint as though set forth fully herein.

FRAUDULENT MISREPRESENTATION

Plaintiffs re-allege and incorporate herein by this reference each and every allegation

set forth in Paragraphs 1 through XX of this Complaint as though set forth fully herein.

Plaintiffs relied on Defendant to provide a clean title to the property.

Defendants were aware of tax lean associated with the Property as is evident in the

Residential Real Estate Agreement.

Defendants led Plaintiffs to believe the title to the Property clear and marketable.

Plaintiff discovered discrepancy only recently while at Stamford Tax Office.

Mr. Siebert had been responsible for tax payment up until the time of his death in March

2019. Ms. Brown has been responsible from that time forward.

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Ms. Brown has been vigilant with tax payments and up until recently the Property’s tax

history for Mr. Siebert only began in 2017.

xx Upon further investigation it was confirmed that the tax lien remained attacked to the

Property after Plaintiffs took possession of the home. Mr. Siebert made over payments

in the amount greater than $20,000. (Specific amount will be provided to the court

shortly).

Material facts should not be mispresented or concealed

*************************

NEGLIGENT MIREPRESENTATION

Accountant Liability to Third Parties for Negligent Misrepresentation:

Should

There Be a Uniform Standard?

(Student Note- Duke, Joey D. )

FROM HEINONLINE

The tort of negligent misrepresentation requires the plaintiff to prove that an accountant

failed to "exercise reasonable care or competence in obtaining and communicating in-

formation to guide others in business transactions. (1) The plaintiff must show that the

accountant breached a legal duty by negligently performing his assigned task, that the

plaintiff justifiably relied on the accountant's work, and that the accountant's negligent

performance proximately caused the plaintiff's damages.” (2)

CONCLUSION

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At present, third parties can hold accountants liable for negligent misrepresentation un-

der one of three standards: the privity or near privity standard, the Restatement stan-

dard, or the foreseeability standard. The existence of these different standards creates

the possibility for ambiguous results for both accountants and injured third parties. This

ambiguity is probably a necessary evil for the development of a more certain and just

standard in the future, if such a development is possible. Until the law arrives at that fu-

ture uniform standard, however, accountants and attorneys who represent them should

carefully consider the benefits and

drawbacks of each standard and the jurisdiction or jurisdictions where their clients prac-

tice accounting or where the accountant's work is likely to cause injury to a third party.

(1). (t 43; accord Raritan River Steel Co. v. Cherry, Bekaert & Holland,

322 N.C. 200, 205, 367 S.E.2d 609, 612 (1988) ("The tort of negligent
misrepre-sentation occurs when a party justifiably relies to his detri-
ment on information prepared without reasonable care by one who
owed the relying party a duty of
care.”)
(2.) Paschall, Professional Negligence: The Accountant's Liability to
Third Parties, TrIAL, July 1989, at 61, 64. But see Imark Indus. v.
Arthur Young & Co., 141 Wis. 2d 114, ~, 414 N.W.2d 57, 64 (Ct. App.
1987) (in Wisconsin, justifiable reliance is an element of intentional
misrepresentation, but not negligent misrepresentation), rev'd in part,
148 Wis. 2d 605, 436 N.W.2d 311 (1989).***

***************************

Rule 5.1. Responsibilities of Partners, Man- agers, and

Supervisory Lawyers
(Amended June 26, 2006, to take effect Jan. 1, 2007.) (a) A partner in a
law firm, and a lawyer who

19
individually or together with other lawyers pos- sesses comparable
managerial authority in a law firm, shall make reasonable efforts to en-
sure that the firm has in effect measures giving reasonable assurance
that all lawyers in the firm conform to the Rules of Professional Con-
duct.
(b) A lawyer having direct supervisory authority over another lawyer
shall make reasonable efforts to ensure that the other lawyer con-
forms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the
Rules of Professional Conduct if:
(1) The lawyer orders or, with knowledge of the specific conduct, rati-
fies the conduct involved; or (2) The lawyer is a partner or has compa-
rable managerial authority in the law firm in which the other lawyer
practices, or has direct supervisory authority over the other lawyer,
and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable
remedial action.
(P.B. 1978-1997, Rule 5.1.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: Subsection (a) applies to lawyers who
have managerial authority over the professional work of a firm. See
Rule 1.0 (d). This includes members of a partnership, the shareholders
in a law firm organized as a professional corporation, and members of
other associations authorized to practice law; lawyers having compa-
rable managerial authority in a legal services organization or a law de-
partment of an enterprise or government agency; and lawyers who
have inter- mediate managerial responsibilities in a firm. Subsection
(b) applies to lawyers who have supervisory authority over the work of
other lawyers in a firm.
Subsection (a) requires lawyers with managerial authority within a firm
to make reasonable efforts to establish internal policies and proce-
dures designed to provide reasonable assurance that all lawyers in the
firm will conform to the Rules of Professional Conduct. Such policies
and procedures include those designed to detect and resolve conflicts
of interest, iden- tify dates by which actions must be taken in pending
matters, account for client funds and property and ensure that inex-
peri- enced lawyers are properly supervised.
Other measures that may be required to fulfill the responsi- bility pre-
scribed in subsection (a) can depend on the firm’s structure and the
nature of its practice. In a small firm of experienced lawyers, informal

20
supervision and periodic review of compliance with the required sys-
tems ordinarily will suffice. In a large firm, or in practice situations in
which difficult ethical problems frequently arise, more elaborate mea-
sures may be necessary. Some firms, for example, have a procedure
whereby junior lawyers can make confidential referral of ethical prob-
lems directly to a designated senior partner or special committee. See
Rule 5.2. Firms, whether large or small, may also rely on continuing le-
gal education in professional ethics. In any event, the ethical atmos-
phere of a firm can influence the conduct of all its members and the
partners may not assume that all lawyers associated with the firm will
inevitably conform to the Rules.
Subsection (c) expresses a general principle of personal responsibility
for acts of another. See also Rule 8.4 (1).
Subsection (c) (2) defines the duty of a partner or other lawyer having
comparable managerial authority in a law firm, as well as a lawyer
who has direct supervisory authority over performance of specific le-
gal work by another lawyer. Whether a lawyer has supervisory author-
ity in particular circumstances is a question of fact. Partners and
lawyers with comparable authority have at least indirect responsibility
for all work being done by the firm, while a partner or manager in
charge of a particular matter ordinarily also has supervisory responsi-
bility for the work of other firm lawyers engaged in the matter. Appro-
priate remedial action by a partner or managing lawyer would depend
on the immediacy of that lawyer’s involvement and the seriousness of
the misconduct. A supervisor is required to intervene to prevent avoid-
able consequences of misconduct if the supervisor knows that the
misconduct occurred. Thus, if a supervising lawyer knows that a sub-
ordi- nate misrepresented a matter to an opposing party in negotia-
tion, the supervisor as well as the subordinate has a duty to correct
the resulting misapprehension.
Professional misconduct by a lawyer under supervision could reveal a
violation of subsection (b) on the part of the supervisory lawyer even
though it does not entail a violation of subsection (c) because there
was no direction, ratification or knowledge of the violation.
Apart from this Rule and Rule 8.4 (1), a lawyer does not have disci-
plinary liability for the conduct of a partner, associate or subordinate.
Whether a lawyer may be liable civilly or crimi- nally for another
lawyer’s conduct is a question of law beyond the scope of these Rules.

21
The duties imposed by this Rule on managing and supervis- ing
lawyers do not alter the personal duty of each lawyer in a firm to abide
by the Rules of Professional Conduct
Rule 5.2. Lawyer
Responsibilities of a Subordinate
A lawyer is bound by the Rules of Professional Conduct notwithstand-
ing that that lawyer acted at the direction of another person.
(P.B. 1978-1997, Rule 5.2.) (Amended June 26, 2006, to take effect Jan.
1, 2007.)
COMMENTARY: Although a lawyer is not relieved of responsibility for a
violation by the fact that the lawyer acted at the direction of a supervi-
sor, that fact may be relevant in determining whether a lawyer had the
knowledge required to render conduct a violation of the Rules. For ex-
ample, if a subordinate filed a frivolous pleading at the direction of a
supervisor, the subordinate would not be guilty of a profes- sional vio-
lation unless the subordinate knew of the document’s frivolous charac-
ter.
When lawyers in a supervisor-subordinate relationship encounter a
matter involving professional judgment as to ethi- cal duty, the super-
visor may assume responsibility for making the judgment. Otherwise a
consistent course of action or posi- tion 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. How-
ever, if the question is reasonably arguable, someone has to decide
upon the course of action. That authority ordinarily reposes in the su-
pervisor, 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.

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