THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

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FORMAL OPINION 1998-1

TOPIC:Attorney employing disbarred or suspended attorney to work in law office; aiding unauthorized practice of law.

DIGEST:Attorney may not aid non-lawyer, 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.

CODE:DR3-101(A); DR1-102(A)(4); EC3-6.

QUESTION

Under what circumstances, if any, may an attorney in good standing employ a disbarred or suspended attorney to work in a law office?

OPINION

An attorney in good standing is contemplating hiring a disbarred lawyer to work in her law office, and is concerned that his activities might result in her violation of the disciplinary rules. She asks what work, if any, it is permissible for him to perform in a law office.

This question poses issues of both ethics and law, ultimately involving the application of DR3-101(A): "A lawyer shall not aid a non-lawyer in the unauthorized practice of law." See Matter of Mason, 208 A.D.2d 1, 621 N.Y.S.2d 582 (1st Dep't 1995) (attorney violated "DR3-101 [aiding a nonlawyer in the unauthorized practice of law]"). See also, DR1-102(A)(4): "A lawyer or law firm shall not: ... Engage in conduct that is prejudicial to the administration of justice...." And see, Annotation, "Disciplinary Action Against Attorney for Aiding or Assisting Another Person in Unauthorized Practice of Law," 41 A.L.R.4th 361 (1985).

Matter of Rosenbluth, 36 A.D.2d 383, 320 N.Y.S.2d 839 (1st Dep't 1971), observes that "[a] suspended or disbarred attorney holds approximately the same status as one who has never been admitted...." This holding is consonant with Judiciary Law §486, which makes it a misdemeanor for any disbarred or suspended attorney to do "any act forbidden by the provisions of this article to be done by any person not regularly admitted to practice law in the courts of record of this state...." Another part of the same article, Judiciary Law §478, makes it unlawful for anyone not duly licensed and admitted in New York to practice or appear in court other than pro se or to act in any manner that would give the impression he is an attorney.

Consistently with these statutes, in Matter of Gajewski, 217 A.D.2d 90, 634 N.Y.S.2d 704 (1st Dep't 1995), an attorney was disciplined for allowing a disbarred attorney to affix her name to affirmations included in court papers; and in Matter of Riely, 101 A.D.2d 351, 475 N.Y.S.2d 473 (2d Dep't 1984), an attorney was punished for "aiding a suspended attorney in the unauthorized practice of law." See also, Matter of Mainiere, 274 A.D. 17, 80 N.Y.S.2d 31 (1st Dep't 1948): "Any member of the bar who lends assistance to a disbarred attorney which enables the latter to keep up the appearance of continuing professional standing subjects himself to discipline." Indeed, in Matter of Takvorian, 240 A.D. 95, 670 N.Y.S.2d 211(2d Dep't 1998), the court held that even inadvertently aiding a non-lawyer in the practice of law can warrant professional discipline.

Judiciary Law §90(2) requires the Appellate Division to insert in every order of suspension or disbarment that the attorney must "thereafter ... desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee." Additionally, the order must specifically "forbid ... [t]he appearance as an attorney ... before any court, judge, justice, board, commission, or other public authority" and "[t]he giving to another of an opinion as to the law or its application, or of any advice in relation thereto."

By §§603.13(a), 691.10(a), 806.9(a) and 1022.26(a) of the Rules of the Appellate Division, all four Departments also explicitly require disbarred, suspended and resigned attorneys to comply fully with Judiciary Law §§478 and 486, as well as §§479 and 484. The Rules of the First (§603.13) and Second (§691.10) Departments contain additional language requiring such attorneys to "comply fully and completely with the letter and spirit" of the statutes "relating to practicing as attorneys at law without being admitted and registered, and soliciting of business on behalf of an attorney at law and the practice of law by an attorney who has been disbarred, suspended or convicted of a felony."

In order to opine whether a lawyer would violate DR3-101 and DR1-102 by aiding a non-lawyer -- including a disbarred or suspended attorney -- in "the unauthorized practice of law," it is first necessary to determine whether the disbarred attorney's contemplated conduct would constitute "unauthorized practice." See, generally, Annotation, "Nature of Legal Services or Law-Related Services Which May be Performed for Others by Disbarred or Suspended Attorneys," 87 A.L.R.3d 279 (1978). At least two of our sister bar associations have already dealt with these issues at some length.

In Opinion #92-15, the Committee on Professional Ethics of the Bar Association of Nassau County considered the question of whether an attorney in good standing may employ a disbarred attorney, in the capacity of a paralegal, to handle document drafting, research and organization of files. The Nassau County Opinion noted that notwithstanding Judiciary Law §§478, 486 and 90(2) and DR3-101(A), EC3-6 contemplates that it is permissible for lawyers to "delegate[] tasks to clerks, secretaries and other lay persons" acting under the attorneys' supervision.

The Committee went on, however, to cite ABA Opinion 1434, unpublished Opinion 7 of the ABA Ethics Committee, and Opinion 666 of the New York County Lawyers' Association for the proposition that "the statutory and code provisions ... impliedly place greater restrictions upon the ability of a disbarred lawyer from earning a living by use of his or her training and talent and experience than are encountered by non-lawyers generally." According to the Nassau County Opinion, however, the determination of what paralegals may do is more properly a matter of law beyond the purview of an ethics committee.

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N.Y. County 666 (1985) is not as deferential, holding that an attorney may not employ a disbarred lawyer as a law clerk whose functions would include the conduct of pre-trial depositions and the attendance at real estate closings on behalf of the inquiring attorney. The New York County Opinion adhered to the view that "it is clear that the employment by a lawyer or law firm of a disbarred lawyer, in any capacity related to the practice of law is improper.... The danger that an unsuspecting member of the public or even other lawyers may be misled as [to] the status of a disbarred lawyer who is employed by a law firm is too grave to ignore." The Committee added, however, that it expressed "no opinion as to whether a disbarred lawyer may be employed in some other capacity such as a process server, messenger, secretary, investigator, etc."

While concurring in the Nassau County Bar Association's general view that what constitutes the unauthorized practice of law is itself a question of law and thus beyond this Committee's jurisdiction, we also agree with the conclusion of the New York County Lawyers' Association that it is clearly impermissible for an attorney to employ a disbarred lawyer to conduct depositions or attend closings on the attorney's behalf. We would add, moreover, that the employment of a disbarred lawyer is fraught with ethical peril even with respect to activities that nonlawyers may properly engage in. Courts may reasonably scrutinize such activities and conclude that their performance by a disbarred lawyer poses greater risk to the public than their performance by a nonlawyer.

Indeed, in Matter of Parker 241 A.D.2d 208, 670 N.Y.S.2d 414(1st Dep't 1998), the Appellate Division recently held that an attorney had "certainly" violated DR3-101(A) by aiding a non-lawyer in the practice of law "by allowing ... a resigned attorney ... to prepare a contract of sale and appear on the seller's behalf in order to postpone a foreclosure sale." Noting that "[w]e are certainly loath to have attorneys improperly delegating their responsibilities as attorneys to non-lawyers and, depending on the circumstances of each case, severe penalties are warranted," the First Department cited with approval the hearing panel's analysis of the relevant issues:

In sustaining Charge One, the Panel found that, by authorizing Butler, a resigned attorney, to negotiate, draft and finalize Mrs. Hunter's contract of sale and affidavit on Oct. 22, 1994, and to appear on her behalf and negotiate and execute the forbearance agreement on Oct. 24, 1994, respondent aided a non-lawyer in the unauthorized practice of law in violation of DR3-101(A). It noted the proliferation of the use of legal assistants in the last two decades and found generally that the appropriate use of legal assistants facilitates the delivery of legal services at reasonable cost in fulfillment of the obligation of lawyers to make legal counsel available to the public. Recognizing that there is no clear cut definition of the unauthorized "practice of law" and the nature and scope of activities appropriately permissible to legal assistants, the Panel found, nevertheless, that "it is clear that delegation of tasks to legal assistants cannot substitute for the personal availability of the lawyer's experience and judgment to the client." While surmising that respondent may have been influenced by Butler's experience as a former lawyer and not doubting that respondent believed he was acting in good faith and appropriately, the Panel did not think that a reasonable lawyer under the circumstances would have been justified in the level of delegation which occurred, even if the ultimate advice would not have been different, and found that respondent "crossed the line between appropriate reliance on an assistant and abdication to a non-lawyer of the lawyer's responsibility to the client."

Guidance as to other activities that have been determined to constitute "unauthorized practice" can be found in prior opinions of the Appellate Division. These would include the following 1:
Matter of Emmanuel, 157 A.D.2d 134, 555 N.Y.S.2d 174 (2d Dep't 1990): Attorney disciplined who "permitted a nonlawyer to appear as her associate counsel."

Matter of Caracas, 171 A.D.2d 358, 576 N.Y.S.2d 293 (2d Dep't 1991): Attorney disciplined who "allowed an employee," not admitted anywhere as an attorney, "to consult with a client and to prepare legal papers for the client," who "was unaware ... that the employee was not admitted to the practice of law."

Matter of Mason, supra: Attorney "improperly facilitated the practice of law" by allowing non-lawyer to try Housing Court case and another non-lawyer to draft court complaints.

Matter of Mainiere, supra: Attorney disciplined for permitting use of name as counsel in litigation in which disbarred attorney was interested, thereby enabling disbarred attorney to maintain appearance of being engaged in legal practice.

Matter of Nadelweiss, 260 A.D. 89, 20 N.Y.S.2d 773 (1st Dep't 1940): Attorney disciplined for aiding his uncle, in whose law office he was employed, in permitting a disbarred attorney to hold himself out as the uncle and practice under the latter's name.

Matter of Lerner, 270 A.D. 602, 61 N.Y.S.2d 661 (1st Dep't 1946): Attorney disciplined for allowing disbarred attorney to use office, to hold himself out as entitled to practice law, to interview witnesses and, in certain particular cases, to practice law, and for allowing another disbarred attorney to use his office and his facsimile signature stamp.

Matter of Sutherland, 252 A.D. 620, 300 N.Y.S. 667 (1st Dep't 1937): Attorney disciplined who "permitted and requested" disbarred attorney "to perform the duties of a law clerk on numerous occasions."

Matter of Olitt, 145 A.D.2d 273, 538 N.Y.S.2d 537 (1st Dep't), cert. denied, 493 U.S. 937, 110 S. Ct. 333, 107 L. Ed. 2d 322 (1989): Suspended attorney may not serve as "house counsel" for company in which he has controlling interest, appear in court for brokerage firm while filing papers in his name, draft contracts for brokerage house, or appear in arbitration proceedings before stock exchange allegedly pro se on behalf of company in which he has interest.

Matter of Stahl, 200 A.D.2d 285, 613 N.Y.S.2d 437 (2d Dep't 1994): While employed in law office, disbarred attorney improperly made "determinations to initiate actions at law and settle collection claims and actions."

Matter of Abbott, 175 A.D.2d 396, 572 N.Y.S.2d 467 (3d Dep't 1991): Suspended attorney may not "maintain an office ... giving at least the appearance of a law office," with the building directory and office door designating him as an attorney; may not use letterhead and envelopes designating him an attorney; may not continue to represent clients or attempt to do so; and may not continue to hold clients' funds in escrow.

Matter of Koffler, 236 A.D. 240, 258 N.Y.S. 611 (1st Dep't 1932): Disbarred attorney held in contempt for representing to trial court that he was an attorney entitled to practice, examining witnesses in case, and testifying as an expert in case while identifying himself as an attorney without revealing disbarment.

Matter of Markowitz, 28 A.D.2d 262, 284 N.Y.S.2d 463 (1st Dep't 1967): Suspended attorney may not represent "sellers, as clients, in two real estate or purchase and sale transactions."

Proopis v. Equitable Life Assur. Soc. of the U.S., 183 Misc. 378, 48 N.Y.S.2d 50 (Kings Sup. Ct. 1944): Disbarred attorney may not "associate himself with counsel in an examination before trial or any other legal proceeding in which he actively participates in planning and executing the progress of the litigation" by his "presence ... so that he may assist and take part in a legal proceeding" as an "actuarial expert" "by giving advice to counsel as the facts, upon which he is an expert, are developed." 2

Matter of Israel, 230 A.D.2d 293, 655 N.Y.S.2d 538 (1st Dep't 1997): Suspended attorney disbarred for "continuing to represent clients and practice law."

Matter of Ratafia, 268 A.D. 987, 51 N.Y.S.2d 558 (2d Dep't 1944): Disbarred attorney may not serve as senior law clerk in State Labor Department, examining and preparing contested cases for hearings before referees, disposing of applications for adjournments, initiating investigations, and issuing subpoenas.

Matter of Katz, 35 A.D.2d 159, 315 N.Y.S.2d 97 (1st Dep't 1970): Suspended attorney may not be employed by a City Marshal, a public official whose work is closely allied with courts and judicial proceedings and whose duties include enforcing court orders.

Matter of Spar, 100 A.D.2d 71, 473 N.Y.S.2d 192 (1st Dep't 1984): Disbarred attorney guilty of misdemeanor and contempt for unauthorized practice of law.

Matter of Glick, 126 A.D.2d 5, 512 N.Y.S.2d 413 (2d Dep't 1987): Suspended attorney guilty of misdemeanor for unauthorized practice of law.

On the other hand, in Matter of Rosenbluth, supra, a divided court held it permissible for a disbarred attorney to run a calendar watching service. According to the First Department majority, citing various Opinions of the A.B.A. and this Association, among the other "law related activities" that suspended or disbarred attorneys "have been permitted to engage in" are: aiding an attorney in preparing a law book (in which event disbarred lawyer's name may be used); soliciting lawyers for process serving business to be turned over to a process serving firm; and acting as an investigator or adjuster for an insurance company.

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The Court of Appeals has analyzed these issues in Matter of Rowe, 80 N.Y.2d 366, 590 N.Y.S.2d 179, 604 N.E.2d 728 (1992). In discussing the right of a suspended lawyer to publish "a law-related article" on the right to refuse treatment, the court confined "[t]he practice of law" to "the rendering of legal advice and opinions to particular clients" and held the article permissible as an exercise of the First Amendment because it "sought only to present the state of the law to any reader interested in the subject" and "neither rendered advice to a particular person nor was intended to respond to known needs and circumstances of a larger group." The Court of Appeals cited Matter of Rosenbluth, supra, approvingly for the proposition that the Appellate Division in Rowe had "improperly 'prohibit[ed] him from engaging in endeavors which he could have undertaken had he never been admitted to the Bar in the first place'...." The Court of Appeals also held that the suspended attorney could properly use "the letters J.D. following his name," as "[t]he letters identified him as one who had successfully completed a law school curriculum, not as a member of the Bar licensed to practice law."

Citing the Second Department's order in Matter of Wolfram, 3 Nass. Co. 92-15 suggested that an adjudication of the question of what a disbarred or suspended attorney may do in a specific instance might be obtained by motion in the Appellate Division. While Rosenbluth won relief in precisely that fashion to enable him to run a calendar watching service, it is noteworthy that, without elucidation, the Second Department denied Wolfram's motion to allow him "to be employed in a law office as a paralegal, law clerk or legal research assistant." It is worth repeating that N.Y. County 666 declined to opine on whether a disbarred lawyer might properly be employed by a law firm as a process server, messenger, secretary or investigator; and we concur that only the Appellate Division, on proper application, can decide such an issue or, for that matter, whether there are circumstances in which a disbarred attorney might be able to act as a paralegal while "desist[ing] and refrain[ing] from the practice of law in any form."

CONCLUSION

It is clearly improper for a lawyer or law firm to employ a disbarred or suspended attorney in any capacity related to the practice of law. What acts constitute the unauthorized practice of law is a question of law for the Appellate Division.

Issued: December 21, 1998

1 One lower-court opinion is also cited.

2 This case is cited approvingly in N.Y. County 666 for the proposition: "Certain it is that our law rigidly excludes those who have been disbarred from the slightest participation in the work of a lawyer or of his office, to which employment, as a layman, there could not be the slightest objection, were it not for the fact of disbarment."

3 The correct citation of the order is 11/27/89 N.Y.L.J. 6.

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