C-211

July, 1972

SYLLABUS

The employment by a lawyer or law firm of a disbarred or suspended lawyer to perform any acts of a legal or quasi-legal nature, even under close supervision and scrutiny of the employer, is improper.

A disbarred or suspended lawyer may not be employed as a "paralegal assistant" by a lawyer or law firm in good standing.

While it would not be improper per se for a lawyer or law firm in good standing to employ a disbarred or suspended lawyer in some strictly nonprofessional capacity such as a caretaker, chauffeur or for the performance of other duties which would in no way permit even a suspicion that the suspended lawyer is engaged in the practice of law, because of the need of the profession to retain the complete confidence of the public which might be diminished upon the suspicion that an employee of a lawyer is not trustworthy, the lawyer should not extend such employment.

References: MCPR Canon 3; MCPR DR 3-101.

TEXT

A lawyer employs a disbarred lawyer as office manager of the lawyer's office, paying a salary of $300.00 per week. Prior to disbarment the office manager practiced worker's compensation law. Among the office manager's present duties is the reception and interview of prospective claimants who consult the firm with regard to work-related illness and injury. It is unclear whether the office manager directs the completion and execution of the client's petition for relief or simply passes the interview data to a lawyer.

The State Bar Grievance Administrator asks whether the employment arrangement violates ethics rules.

We see the problem as divided into two parts: (a) may a lawyer employ a disbarred or suspended lawyer to work in the law firm, and (b) should a lawyer employ a disbarred or suspended lawyer to work in the law firm.

The first question should first be considered in connection with the nature of the employment, i.e., the duties and responsibilities to be undertaken. If the employment is extended as a matter of compassion, or as a gesture of friendship or recognition of past associations, or in an honest attempt to aid a former lawyer's rehabilitation, or simply to lend badly needed economic assistance, we recognize no moral or ethical standard which prohibits an offer of employment in a strictly nonlegal capacity. Thus, depending upon the capabilities of the person involved, there is no reason why the disciplined lawyer could not be given employment in some strictly nonprofessional capacity such as a caretaker, chauffeur, operator of business machines and equipment, or for the performance of other duties which would in no way permit even a suspicion that the employee 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 the employee and law firm clients, and above all the employee should not be permitted to have anything to do with the practice of law.

We note that MCPR Canon 3 and the ABA Model Code of Professional Responsibility Ethical Considerations for that Canon suggest it is deemed proper for a lawyer to delegate tasks to lay persons so long as the lawyer maintains a direct relationship with the client, supervises the delegated work and has complete professional responsibility for the work product. Such lay persons are generally termed "paralegal" assistants. The Administrator thus inquires whether a suspended or disbarred lawyer may be employed by another lawyer or law firm as "paralegal" assistant.

We think the answer must be no, positing our conclusion on the belief that there is a distinct difference between a "paralegal assistant" and a disbarred or suspended lawyer. A "paralegal" assistant is one who, though not a lawyer, under certain circumstances and under safeguards discharges certain legal services performed under the strict supervision of an employing lawyer, which delegation enables the lawyer to render legal services more economically and efficiently. Thus there is a direct benefit to the client and the public.

On the other hand when a lawyer has been disbarred because he or she has been found to lack the moral qualities required for office and has been stripped of the privilege to practice, it is better for society that the disciplined lawyer's connection with the profession be severed completely. In New York Ethics Op 186 it was stated that if as a matter of law the disbarred lawyer is forbidden to render services (preparing papers, including complaints, answers, and other legal documents) then it is clearly improper for the practicing lawyer to employ the disciplined lawyer for their performance. As a matter of professional propriety, such employment of a disbarred lawyer to perform duties that lie in a doubtful zone between practicing law or not should be disapproved because such employment tempts and conduces to the violation of the plain intendment of the order of disbarment.

ABA Unreported Opinion No. 7 advised against the employment of a disbarred lawyer, even to do only office work and seeing no clients because of the practical difficulty of confining the employee's activities to an area which does not include the practice of law, and because such employment would show disrespect to the courts.

This Committee's Op 936 addressed the subject of lawyers employing disbarred lawyers and although that opinion was limited to the facts submitted in that particular inquiry, some of the authorities hereinabove mentioned were discussed. We see no reason to depart from the views then expressed and reaffirm that employment of a disbarred lawyer to perform any acts of a legal or quasi-legal nature, even under the close scrutiny of the employing lawyer, would subject the employer to criticism as to his or her own professional conduct.

Having expressed our beliefs as to whether or not a lawyer in good standing may employ a disbarred or suspended lawyer and if so, in what capacities, we conclude by considering whether a lawyer should employ a disciplined lawyer. New York City Ethics Op 636 states:

"The practice of the law requires that the highest degree of confidence and trust should exist between clients and their attorneys and between attorneys and the courts. The profession needs and is entitled to have the confidence of the public. The suspicion that an employee of an attorney is not trustworthy diminishes the usefulness of that attorney and of other members of the Bar. This is also true no matter what the duties of the employee are."

While humanitarian elements of past associations and willingness to aid in an attempted rehabilitation reflect valid and moral attitudes and command recognition, those interests should be balanced against the interests of the public and the need for continued confidence and trust in the legal profession. Assuming a sincere desire to help a disciplined lawyer to find employment, that commendable purpose could be achieved by assisting in the person's placement with some organization not engaged in any elements of the practice of law where there could not be even a remote suspicion of an attempt to thwart a disciplinary order or disbarment. Importantly such an employment could not lend itself to temptation of the disciplined lawyer to engage in activities that lie in the doubtful zone between practicing law or not.

It would be the better part of discretion for a lawyer not to put the disbarred or suspended lawyer to work in a law office.