ABA Model Standards and Ethics Opinions.
Work permitted by disbarred attorney….states differ…
Under Rule 27 of the ABA Model Rules for Lawyer Disciplinary Enforcement, a lawyer who is disbarred or suspended from the practice of law must within 10 days of the date when discipline was imposed send a notice to all clients that are currently being represented, all opposing counsel and any co-counsel notifying them that the lawyer is no longer able to act as a lawyer in the matter.
The rule states that the order of disbarment or suspension is effective 15 days from the date of the order, unless the court directs otherwise. During this interim period, the lawyer must not take on any new clients and must remove any indicia of his status as a lawyer, law clerk or legal assistant. Subpart 7 of the rule provides further that “Upon the effective date of the order, the respondent shall not maintain a presence or occupy an office where the practice of law is conducted.”
Note that the state rules of lawyer disciplinary enforcement can vary on this issue. See, e.g., Rule 217(j) of the Pennsylvania Rules of Lawyer Disciplinary Enforcement that goes into great detail describing what activities a “formerly admitted lawyer” can engage in. The rule permits a lawyer to work in certain law-related capacities so long as he is adequately supervised by a licensed lawyer and otherwise complies with the terms of the rule. The full text of this rule is included at the end of this article. See also Subpart (h) of Rule 2.16 Disbarred or Suspended Attorneys of the Disciplinary Rules of the Hawaii Supreme Court that states as follows:
In the event the disbarred or suspended attorney should maintain a presence in an office where the practice of law is conducted, the disbarred or suspended attorney shall not have any contact with the clients of the office either in person, by telephone, or in writing, or have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing.
In 1979, the ABA Standing Committee on Ethics and Professional Responsibility issued Informal Opinion 1434 Employment of Disbarred Lawyer in Nonlegal Capacity, which stated that if the contemplated activity of the disbarred or suspended lawyer would constitute the practice of law under applicable state law, then the lawyer employing the disbarred lawyer could be in violation of DR 3-101 Aiding Unauthorized Practice of Law of the ABA Model Code of Professional Responsibility. (Note: The Model Code was withdrawn in 1983 and is no longer official ABA policy.) The Model Rule corollary to DR-3-101 is Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law. Informal Opinion 1434 also cited to unpublished Informal Opinion 7 of the ABA Committee on Professional Ethics (the predecessor to the current ABA Standing Committee on Ethics and Professional Responsibility) that states as follows:
“An attorney should not employ a disbarred lawyer, even to do only office work and seeing no clients, because of the practical difficulty of confining his activities to an area which does not include practice of law, and because such employment would show disrespect to the courts.”
II. State and local bar ethics opinions. There have been several state and local bar association ethics opinions on the topic of the types of law-related activities a lawyer can engage in after having been disbarred or suspended. Some of these opinions state that the disciplined lawyer may be employed as a paralegal or legal assistant so long as the employing lawyer is careful to avoid assisting the paralegal in activities that would constitute the unauthorized practice of law and does not share legal fees. The question of whether certain conduct should be considered to be the practice of law is a legal, factual matter that is traditionally outside of the jurisdiction of ethics committees. When confronted with such questions, most committees will defer to applicable state law.
Some bar opinions limit their analysis to the types of activities that suspended lawyers can engage in. See North Dakota Opinion 01-02 (2001) (A suspended lawyer may act as a paralegal, legal assistant or other type of support staff to a licensed lawyer if the arrangement complies with the controlling case law and with Rule 5.3); Vermont Opinion 97-11 (1998) (A lawyer may employ as a paralegal or an investigator, another lawyer who has been suspended from practice); and Iowa Opinion 99-16 (Suspended lawyers may perform paralegal work).
Other opinions address whether a disbarred lawyer may perform law-related services and state that while they can work in law firms, the types of activities they can engage in is something less than what a paralegal can traditionally handle and is limited to matters that are administrative and ministerial in nature. See Oklahoma Opinion 319 (2002). (Disbarred or suspended lawyers may work as paralegals, but the lawyers who employ them must be careful to avoid assisting in the unauthorized practice of law.) The Oklahoma Committee stated:
The employment of a disbarred lawyer is fraught with ethical peril even with respect to activities that nonlawyers may properly engage in. 1. As a general rule, a suspended or disbarred lawyer employed by a law firm is subject to even greater restrictions than those employees without legal training. 2. The Oklahoma Supreme Court has adopted the position of State v. Schumacher, 519 P.2d 1116 (Kan. 1974), wherein the court decreed that, “some actions which may be taken with impunity by persons who have never been admitted to the practice of law, will be found to be in contempt if undertaken by a suspended or disbarred attorney.” State ex rel. Oklahoma Bar Ass’n v. Samara, 1986 OK 55, ¶ 11, n. 4, 725 P.2d 306.
… [T]he Oklahoma Supreme Court has determined that suspended or disbarred attorneys, and nonlawyers in general, who perform more than clerical work in association with other licensed attorneys are engaging in the unauthorized practice of law. Samara, 1986 OK 55 at ¶ 9. Activities that constitute the unauthorized practice of law if performed by suspended or disbarred attorneys include assisting lay-persons in preparing pleadings; giving legal advice to lay-persons; writing contracts or selecting and filling out proper deed forms for lay-persons; participating in settlement negotiations; and participating in pre-trial activities such as taking depositions.
Philadelphia Bar Opinion 2005-10 (2005) addressed the types of activities a suspended or “formerly admitted” lawyer may partake both inside and outside of the law firm context. The opinion stated that a suspended lawyer may engage in public speaking, writing and teaching so long as he discloses that he is not admitted to practice. The opinion also stated that the lawyer could act as a paralegal so long as the activities are ministerial, clerical and preparatory in compliance with Rule 217(j) of the Pennsylvania Rules of Lawyer Disciplinary Enforcement. Philadelphia Opinion 2007-03 (2007) states that a suspended lawyer may work at his old law firm so long as he confines his work to purely administrative tasks.
KENTUCKY OPINION E-255 (1981) provided the following provisos for the types of activities an “ex-lawyer” can engage in:
1. The individual may do anything a layperson could do.
2. The individual may perform such work which is of a preparatory or ministerial nature.
1. The individual may not have any contact whatsoever with a client of a lawyer.
2. The individual is not a Paralegal within SCR 3.700.
3. The individual may not have an office, or place, in the lawyer’s facility.
4. THE INDIVIDUAL MAY PERFORM ANY DRAFTING ACTS, AS LONG AS THEY ARE SUBMITTED IN DRAFT FORM ONLY TO THE RESPONSIBLE LAWYER FOR APPROVAL.
5. The individual may perform clerical aspects of a probate matter.
6. The individual may do an abstract title examination.
7. THE INDIVIDUAL MAY PROVIDE LEGAL RESEARCH TO A LAWYER.
See also North Carolina Opinion 98-7 (1998) (Disbarred lawyer may be employed as paralegal, but may not work at the firm where he was employed during the period of misconduct. The employing firm also may not accept clients of the former lawyer’s firm that were clients of the disbarred lawyer during the same period of misconduct.); Oregon Opinion 2005-24 (2005) (A lawyer may employ suspended or disbarred lawyers so long as they do not practice law and do not receive a share of legal fees); and Kentucky opinions E-256 (Lawyer may not act as paralegal) (1981) and E-336 (1989) (Lawyer may act as paralegal after period of suspension has run).
Other state bar opinions prohibit lawyers from hiring a disbarred or suspended lawyers to engage in any activity that is related to the practice of law. See, e.g., New York State Opinion 1998-1 (12/21/98) (Attorney may not aid nonlawyer, including disbarred or suspended attorney, in unauthorized practice of law. It is improper for lawyer or law firm to employ disbarred or suspended attorney in any capacity related to practice of law. What acts constitute unauthorized practice is question of law for Appellate Division.) Washington State Bar Opinion 184 (1990, amended 2009), a digest of which appears in the ABA/BNA Lawyers’ Manual on Professional Conduct, states as follows:
A lawyer may not hire a disbarred or suspended lawyer in a capacity related to the practice of law such as a legal clerk, researcher, writer, secretary, office employee, paralegal, investigator, messenger or law firm accountant, but he may hire a disbarred or suspended lawyer in other non-law-related capacities such as mowing lawns, washing windows, or managing a business or property not related to the practice of law. Formal Opinion 171 is withdrawn. Rule 1.1(h).
See also Mississippi Opinion 171 citing to an earlier Opinion 96 that stated that it is not proper for an attorney to allow a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney’s law office and concluded that a lawyer who has been reinstated conditioned on passing the state bar and MPRE exams may not work in a law firm until he has complied with the conditions of his reinstatement .
See also Philadelphia Bar Opinion 2012-3 (2012) stating that a suspended lawyer may not act as a nonattorney advocate in a Social Security proceeding.
III. State rules of professional conduct. Some states address this question through their rules of professional conduct. See, e.g., Wyoming ’s version of Rule 8.4 that states as follows:
It is professional misconduct for a lawyer to:
(g) … knowingly employ or continue to employ or contract with any person in the practice of law who has been disbarred or is under suspension from the practice of law by any jurisdiction, or is on disability inactive status by any jurisdiction. The prohibition of this rule extends to the employment of or contracting for the services of such disbarred or suspended person in any position or capacity (including but not limited to as an employee, independent contractor, paralegal, secretary, investigator or consultant) which is directly or indirectly related to the practice of law as defined by Rule 11(a) of the Rules of the Supreme Court of Wyoming Providing for the Organization and Government of the Bar Association and Attorneys at Law of the State of Wyoming, whether or not compensation is paid.
(e) (l) A lawyer shall not:
(i) employ, contract with as a consultant, engage as an independent contractor, or otherwise join in any other capacity, in connection with the practice of law, any person the attorney knows or reasonably should know is a disbarred attorney, during the period of disbarment, or any person the attorney knows or reasonably should know is an attorney who has permanently resigned from the practice of law in lieu of discipline; or
(ii) employ, contract with as a consultant, engage as an independent contractor, or otherwise join in any other capacity, in connection with the practice of law, any person the attorney knows or reasonably should know is a suspended attorney, or an attorney who has been transferred to disability inactive status, during the period of suspension or transfer, unless first preceded by the submission of a fully executed employment registration statement to the Office of Disciplinary Counsel, on a registration form provided by the Louisiana Attorney Disciplinary Board, and approved by the Louisiana Supreme Court.
In May of 2012, the ABA Client Protection Committee conducted a survey of Unlicensed Practice of Law Committees. In Chart III of the survey, one of the questions posed is: May disbarred or suspended lawyers engage in a law-related activity? If so, what are the restrictions? Of the states responding, 20 said yes, while 14 said no. The results are available here.
For further information on the types of activities that suspended or disbarred lawyers may engage in, your state unauthorized practice of law committee may be able to help. A state-by-state listing of these committees with contact information is available here.
IV. Case law
In those jurisdictions that permit a disbarred or suspended lawyer to work in a law firm in a nonlegal capacity, lawyers who employ them must carefully supervise them in order to avoid assisting in the unauthorized practice of law. See the following annotations to Rule 5.5 from the 2011 edition of the ABA Annotated Model Rules of Professional Conduct:
- Law-Related Activities of Suspended or Disbarred Lawyers The extent to which suspended or disbarred lawyers may engage in law-related activities short of actual practice depends upon the jurisdiction. See Wilson v. State Bar, 132 F.3d 1422 (11th Cir. 1998) (rules prohibiting practicing lawyers from allowing suspended or disbarred lawyers they employ to have contact with clients are not unconstitutionally vague); In re Boyer, 988 P.2d 625 (Colo. 1999) (suspended lawyer engaged in unauthorized practice by analyzing value of clients’ personal injury claims, negotiating with insurer regarding claims, giving advice, and collecting attorneys’ fees); In re Anonymous, 787 N.E.2d 883 (Ind. 2003) (Indiana prohibits suspended or disbarred lawyer from maintaining presence or occupying office where practice of law is conducted “so the public is not misled into believing that the attorney is still authorized to practice law”); In re Wiles, 210 P.3d 613 (Kan. 2009) (disbarred or suspended lawyer may work for lawyer as law clerk, investigator, paralegal, or in any lay capacity but may do only preparatory work under lawyer’s supervision and may not have client contact in person, by telephone, or in correspondence); In re Rowe, 604 N.E.2d 728 (N.Y. 1992) (publishing article on legal topic and identifying self in it as “J.D.” did not violate suspension directing lawyer not to practice law, give advice on law, or hold himself out as lawyer); In re Chastain, 587 S.E.2d 115 (S.C. 2003) (disbarring suspended lawyer who engaged in unauthorized practice by working as office manager for county lawyer).
Whether a suspended or disbarred lawyer may engage in law-related activities is dependent on the rules of professional conduct, lawyer rules of disciplinary enforcement and case law of the jurisdiction. As always, check your local rules. Lawyers who have questions in this area might also consider contacting their state unauthorized practice of law committee.
Rule 217(j) of the Pennsylvania Rules of Lawyer Disciplinary Enforcement:
(j) A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the following requirements:
(1) All law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision (j). If the formerly admitted attorney is engaged by a law firm or other organization providing legal services, whether by employment or other relationship, an attorney of the firm or organization shall be designated by the firm or organization as the supervising attorney for purposes of this subdivision.
(2) For purposes of this subdivision (j), the only law-related activities that may be conducted by a formerly admitted attorney are the following:
(i) legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;
(ii) direct communication with the client or third parties to the extent permitted by paragraph (3); and
(iii) accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.
(3) A formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney.
(4) Without limiting the other restrictions in this subdivision (j), a formerly admitted attorney is specifically prohibited from engaging in any of the following activities:
(i) performing any law-related activity for a law firm, organization or lawyer if the formerly admitted attorney was associated with that law firm, organization or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred, through and including the effective date of disbarment or suspension;
(ii) performing any law-related services from an office that is not staffed by a supervising attorney on a full time basis;
(iii) performing any law-related services for any client who in the past was represented by the formerly admitted attorney;
(iv) representing himself or herself as a lawyer or person of similar status;
(v) having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3);
(vi) rendering legal consultation or advice to a client;
(vii) appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;21
(viii) appearing as a representative of the client at a deposition or other discovery matter;
(ix) negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction;
(x) receiving, disbursing or otherwise handling client funds.
(5) The supervising attorney and the formerly admitted attorney shall file with the Disciplinary Board a notice of engagement, identifying the supervising attorney and certifying that the formerly admitted attorney’s activities will be monitored for compliance with this subdivision (j). The supervising attorney and the formerly admitted attorney shall file a notice with the Disciplinary Board immediately upon the termination of the engagement between the formerly admitted attorney and the supervising attorney.
(6) The supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this subdivision (j).
Note: Subdivision (j) was adopted by the Court to limit and regulate the law-related activities performed by formerly admitted attorneys regardless of whether those formerly admitted attorneys are engaged as employees, independent contractors or in any other capacity. Subdivision (j) requires that a notice be filed with the Disciplinary Board when any law-related activities are performed by a formerly admitted attorney and when the engagement is terminated. Subdivision (j) is addressed only to the special circumstance of formerly admitted attorneys engaging in law-related activities and should not be read more broadly to define the permissible activities that may be conducted by a paralegal, law clerk, investigator, etc. who is not a formerly admitted attorney. Subdivision (j) is also not intended to establish a standard for what constitutes the unauthorized practice of law. Finally, subdivision (j) is not intended to prohibit a formerly admitted attorney from performing services that are not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.
Model Rules for Lawyer Disciplinary Enforcement
MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT
About the Model Rules
The Model Rules for Lawyer Disciplinary Enforcement were adopted by the American Bar Association House of Delegates on August 8, 1989 and amended on August 11, 1993, August 5, 1996, February 8, 1999, and August 12, 2002.
Table of Contents
Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.
I. STRUCTURE AND SCOPE
A. Component Agencies
B. Central Intake Office
C. Disciplinary Districts
C. Election of Officers
E. Compensation and Expenses
F. Abstention and Disqualification of Board Members
G. Powers and Duties
B. Terms of Office
D. Powers and Duties
E. Powers and Duties of Hearing Committee Chair
F. Abstention and Disqualification of Hearing Committee Members
B. Powers and Duties
C. Advisory Opinions Prohibited
D. Ex Parte Communication with Disciplinary Counsel
A. Lawyers Admitted to Practice
B. Former Judges
C. Incumbent Judges
D. Powers Not Assumed
B. Exemption of Judges
C. Suspension for Nonpayment
D. Reinstatement after Payment
E. Registration Statement
F. Receipt Demonstrating Filing of Registration Statement
G. Suspension for Failure to File Registration Statements
H. Application for Transfer to Inactive Status
I. Reinstatement from Inactive Status
A. Grounds for Discipline
B. Lesser Misconduct
A. Types of Sanctions
C. Factors to be Considered in Imposing Sanctions
D. Public Nature of Sanctions
II. PROCEDURE FOR DISCIPLINARY PROCEEDINGS
C. Admonition or Probation Imposition
D. Formal Charges
E. Review by Board
F. Review by the Court
G. Alternatives to Discipline Program
A. From Civil Suits
B. From Criminal Prosecution
A. Service of Petition
B. Service of Other Papers
B. Investigatory Subpoenas
C. Subpoenas for Deposition or Hearing
D. Enforcement of Subpoenas
E. Quashing Subpoena
F. Witnesses and Fees
G. Subpoena Pursuant to Law of Another Jurisdiction
B. Resolution of Disputes
C. Civil Rules Not Applicable
A. Availability of Information
C. Public Proceedings
D. Proceedings Alleging Disability
E. Protective Orders
F. Request for Nonpublic Information
G. Notice to Lawyer
H. Release Without Notice
I. Notice to National Lawyer Regulatory Data Bank
J. Duty of Officials and Employees of the Agency
A. Notice to Disciplinary Agencies
B. Public Notice of Discipline Imposed
C. Notice to the Courts
A. Nature of Proceedings
B. Rules Governed by Rules of Civil Procedure and Evidence
C. Standard of Proof
D. Burden of Proof
E. Prehearing Conference
F. Hearings Recorded
G. Related Pending Litigation
H. Hearings on Lesser Misconduct
I. Delay Caused by Complainant
J. Effect of Time Limitations
K. Complaints Against Disciplinary Agency Members
A. Transmittal of Certificate of Conviction by Clerk of Trial Court
B. Determination of "Serious Crime"
C. Definition of "Serious Crime"
D. Immediate Interim Suspension
E. Conviction as Conclusive Evidence
F. Automatic Reinstatement from Interim Suspension upon Reversal of Conviction
G. Notice to Clients and Others on Interim Suspension
A. Transmittal of Evidence
B. Immediate Interim Suspension
C. Notice to Clients
D. Motion for Dissolution of Interim Suspension
A. Board Approval of Tendered Admission
B. Review of Discipline by Consent
C. Discontinuance of Jurisdiction
D. Affidavit of Consent
E. Order of Discipline
A. Disciplinary Counsel Duty to Obtain Order of Discipline or Disability Inactive Status from Other Jurisdiction
B. Notice Served Upon Respondent
C. Effect of Stay in Other Jurisdiction
D. Discipline to be Imposed
E. Conclusiveness of Adjudication in Other Jurisdictions
A. Involuntary Commitment or Adjudication of Incompetency
B. Inability to Properly Defend
C. Proceedings to Determine Incapacity
D. Public Notice of Transfer to Disability Inactive Status
E. Reinstatement from Disability Inactive Status
C. Service of Petition
D. Publication of Notice of Petition
E. Criteria for Reinstatement and Readmission
F. Review of Petition
G. Hearing; Report
H. Decision as to Reinstatement or Readmission
I. Conditions of Reinstatement or Readmission
J. Reciprocal Reinstatement or Readmission
A. Recipients of Notice; Contents
B. Special Notice
C. Duty to Maintain Records
D. Return of Client Property
E. Effective Date of Order; Refund of Fees
F. Withdrawal from Representation
G. New Representation Prohibited
H. Affidavit Filed with Court
A. Inventory of Lawyer Files
B. Protection for Records Subject to Inventory
A. Clearly Identified Trust Accounts in Approved Financial Institutions Required
B. Overdraft Notification Agreement Required C. Overdraft Reports
D. Timing of Reports
E. Consent By Lawyers
A. From Disposition by Central Intake Office
B. From Disposition by Disciplinary Agency
A. Failure to Answer
B. Failure to Appear