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98 Formal Ethics Opinion 7

April 16, 1998

Employment of Disbarred Lawyer

 

Opinion rules that a law firm may employ a disbarred lawyer as a paralegal provided the firm accepts no new clients who were clients of the disbarred lawyer's former firm during the period of misconduct; however, a disbarred lawyer may not work as a paralegal at a firm where he was employed as a lawyer during the period of misconduct.

 

Inquiry #1:

 

Attorney A, a lawyer with ABC Law Firm, reported his professional misconduct to the North Carolina State Bar and voluntarily ceased the practice of law. The professional misconduct occurred while Attorney A was a member of ABC Law Firm. Approximately eighteen months later, after a complaint was filed with the Disciplinary Hearing Commission (DHC), Attorney A submitted to disbarment and surrendered his license. The DHC entered an order of disbarment effective as of the date Attorney A ceased the practice of law eighteen months earlier. Since the time that Attorney A discontinued the practice of law eighteen months ago, some of the people who were clients of ABC Law Firm when Attorney A practiced with the firm and engaged in professional misconduct ("former ABC clients") have sought legal representation from other law firms in the community. XYZ Law Firm has provided legal services to some former ABC clients and continues to be called upon to perform legal services for some former ABC clients. XYZ Law Firm proposed to employ Former Attorney A as a paralegal. May XYZ employ Former Attorney A as a paralegal, and continue to perform occasional legal services for former ABC clients if the clients first came to XYZ Law Firm for legal services prior to the employment of Former Attorney A as a paralegal?

 

Opinion #1:

 

Rule 5.5 (d) of the Revised Rules of Professional Conduct provides:

 

A lawyer or law firm employing a disbarred or suspended lawyer as a law clerk or legal assistant shall not represent any client represented by the disbarred or suspended lawyer or by any lawyer with whom the disbarred or suspended lawyer practiced during the period on or after the date of the acts which resulted in disbarment or suspension through and including the effective date of disbarment or suspension.

 

When a disbarred lawyer is employed by another law firm, the disbarred lawyer may attract clients from his former practice to the hiring law firm. As a consequence, it may be difficult for the disbarred lawyer to avoid the unauthorized practice of law with respect to these former clients. More problematic, however, is the possibility that the hiring law firm may be in collusion with the disbarred lawyer to employ the disbarred lawyer in exchange for the disbarred lawyer's delivery of his former clients to the hiring firm. If so, the firm is showing disrespect for the decision of the DHC and is encouraging unauthorized practice by the disbarred lawyer.

 

In the present situation, however, it is merely fortuitous that former clients of ABC Law Firm sought the legal services of XYZ Law Firm during the period prior to the employment of Former Attorney A as a paralegal. Therefore, provided all clients of XYZ Law Firm fully understand that the disbarred lawyer is not acting as an attorney but merely as a paralegal, and, provided further, that, after the employment of Former Attorney A, XYZ Law Firm accepts no new clients who were clients of ABC Law Firm during the period of Former Attorney A's misconduct, XYZ Law Firm may employ him as a paralegal. Care should also be taken to follow the recommendations in Comment [2] to Rule 5.5 relative to the supervision of a disbarred lawyer and related matters.

 

Inquiry #2:

 

May XYZ Law Firm employ Former Attorney A as a paralegal and perform legal services for former ABC clients if the clients come to XYZ Law Firm subsequent to the employment of Former Attorney A?

 

Opinion #2:

 

No. See opinion #1 above.

 

Inquiry #3:

 

If the answer to inquiry #1 or inquiry #2 is "no", would the answer change if XYZ Law Firm agrees to screen Former Attorney A from participation as a paralegal in the legal services provided to the former ABC clients?

 

Opinion #3:

 

No.

 

Inquiry #4:

 

Former Attorney B was disbarred following a hearing before the DHC. In its order of disbarment, the DHC found, among other things, that Former Attorney B engaged in unethical conduct by failing to supervise an employee for a period of approximately three months during a time when he was a partner in a law firm with his father, Attorney C. As a result of his failure to supervise, the employee misappropriated funds from the firm trust account.

 

May Attorney C employ Former Attorney B as a paralegal, law clerk, or some capacity other than a lawyer?

 

Opinion #4:

 

No. Rule 5.5(c) provides:

 

A lawyer or law firm shall not employ a disbarred or suspended lawyer as a law clerk or legal assistant if that individual was associated with such lawyer or law firm at any time on or after the date of the acts which resulted in disbarment or suspension through and including the effective date of disbarment or suspension.

 

The rule was adopted to prevent a disbarred lawyer from continuing to practice law as if no order of disbarment was entered. In Comment [3] to the rule, it is observed that it would be "practically impossible for the disciplined lawyer to confine himself or herself to activities not involving the actual practice of law if he or she were employed in his or her former office setting and obliged to deal with the same staff and clientele."

 

This inquiry is different from the preceding inquiries because the disbarred lawyer is proposing to work as a non-lawyer at a firm where he formerly worked as a lawyer. Under these circumstances, the existing relationships with staff and clients are more likely to undermine the prohibition on the unauthorized practice of law by the disbarred lawyer. Therefore, Attorney C may not employ Former Attorney B.

 

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