February 27, 1981
Employment of a disbarred or suspended lawyer in any capacity that would place that individual in a law office, law library, or other setting creating the impression that the licensed lawyer is permitting the disbarred or suspended or otherwise giving the appearance of aiding that person to subvert the action of the Disciplinary Board is unethical and prohibited.
References: MCPR Canons 1 and 9, DR 3-101(A); C-211.
A lawyer desires to employ a disbarred lawyer to perform legal research and assistance in the preparation and organization of a number of articles relating to condemnation. The employee would not appear in the law office to perform any legal services nor in any way be held out as a lawyer to the public. Most of the research would be done in local law libraries. The lawyer asks whether an offer of such employment is permitted under ethics rules.
MCPR Canon 3 states that "A lawyer should assist in preventing the unauthorized practice of law." MCPR DR 3-101 states that a lawyer shall not aid a non-lawyer in the unauthorized practice of law.
A determination of the ethical question presented depends to some extent upon the legal interpretation of the phrase "unauthorized practice of law."
If research, preparation and organization of an article on a legal topic is the "practice of law," then a lawyer's use of a disbarred lawyer for that activity would be clearly unethical conduct. The construction and application of the term "practice of Law" is a law question for the courts, and not within the jurisdiction of this Committee.
Formal ethics opinion C-211 (July, 1972), states in part:
"Thus, depending upon the capabilities of the persons involved, there would seem to be no reason whey he could not be given employment in some strictly non-professionally-connected capacity such as caretaker, chauffeur-driver, in the operation and maintenance of business machines and equipment, or for the performance of other duties which would in no way permit even a suspicion that he is engaged, even remotely, in the practice of law.
"To this must be added the further caveat that there would have to be a rigid, absolute prohibition against any contact whatsoever between such party and the clientele of the employing lawyer or law firm and above all, such an employee could never be permitted to have anything to do with the practice of law which is to say that he may do nothing which he could have done as a lawyer prior to his disbarment." Emphasis added.
A close reading of this Opinion and the authorities cited therein leads to the conclusion that while it is commendable to offer economic assistance to a fallen comrade, the need to preserve the professional integrity and public confidence in our profession is of paramount importance and a lawyer should not employ a suspended or disbarred lawyer in any capacity which suggests that the disciplined lawyer is engaged, even remotely, in the practice of law.
In conclusion, the Committee believes that it is inappropriate for a lawyer to employ a disbarred or suspended lawyer in any capacity that would place that individual in a law office, law library, or other setting, which would create the impression that the licensed lawyer is in some way permitting the disbarred or suspended lawyer to undermine the disbarment or suspension or otherwise give the appearance of aiding that person to subvert the action of the disciplinary authority. MCPR Canon states that "A lawyer should avoid even the appearance of professional impropriety," and MCPR Canon 1 provides that a lawyer should assist in maintaining the integrity and competence of the legal profession.