State Bar of Arizona Ethics Opinions
87-27: Responsibilities Regarding Non-Lawyer Assistants; Unauthorized Practice of Law
A lawyer may employ a disbarred lawyer in the same capacity as he would employ any non-lawyer assistant.
The inquiring lawyer asks whether it is ethically permissible for him or his law firm to employ or engage a disbarred lawyer to do legal research. The lawyer also asks our opinion as to the extent to which a disbarred lawyer may be utilized in a law practice.
In the present case, the disbarred lawyer would be used primarily for legal research and case analysis, and all of the disbarred lawyer's work would be supervised.
Under what circumstances, if any, should a disbarred lawyer be allowed to work for a lawyer or law firm?
ER 5.3. Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer: and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved: or
(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
ER 5.5. Unauthorized Practice of Law
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
The committee has previously considered this question in its Opinion No. 18 (July 15, 1956) and Opinion No. 77-5 (March 3, 1977). The instant request is the first to be made under the current Rules of Professional Conduct.
In Opinion No. 18, the committee prohibited a lawyer from employing or using a disbarred lawyer in his practice in any capacity whatsoever. The committee feared that any employment by a lawyer would create an impression that disbarment is meaningless and would flout the Arizona Supreme Court's disbarment decision. Moreover, the committee warned that "inevitably” the disbarred lawyer would slide covertly or otherwise into the unauthorized practice of law.
In Opinion No. 77-5, the committee reconsidered its Opinion No. 18 and found its blanket prohibition unduly harsh. The committee reasoned that a total ban on employment would impermissibly transform disbarment from a prophylactic measure intended to protect the public and Bar, see In re Peterson, 108 Ariz. 255, 495 P.2d 851 (1972), to an instrument of punishment. The committee considered such a transformation both unwarranted and improper. The committee thus approved the utilization of a disbarred attorney by a practicing lawyer.
Even so, the committee's approval was grudging. Concerned about the possible appearance of impropriety, which was forbidden by then Canon 9 of the Code of Professional Responsibility, the committee shied away from simply allowing a former lawyer to do anything a nonlawyer could do. Instead, the committee devised a balancing test to assess the impropriety of engaging a disbarred attorney. The test compared the grounds for disbarment with the duties to be performed to determine if the former could ethically permit the latter. As a result, a bright-line test became fuzzy.
The present committee, in reassessing the issue under the present Rules, agrees with Opinion No. 77-5's rejection of Opinion No. 18. Courts have generally accepted this position. See, e.g., The Florida Bar v. Thomson, 310 So. 2d 300 (Fla. 1975); In re McKelvey, 82 Cal. App. 426, 255 P. 834 (1927); see also In re Frabizzio, 508 A.2d 468 (Del. 1986); In re Easler, 272 S.E.2d 32 (S.C. 1980); State ex rel Oregon State Bar v. Lenske, 284 Or. 23, 584 P.2d 759 (1978); Application of Christianson, 215 N.W.2d 920 (N.D. 1974). See generally Annot., 87 A.L.R.3d 279 (1978). The committee would consider any other result to be too draconian.
The committee however rejects Opinion No. 77-5's imposition of a balancing test as unduly complicated and unnecessary. The test is too vague to permit a lawyer to confidently apply it. For instance, what would happen if a lawyer disbarred for perjury sought employment as a legal researcher? Under the present test, it is not clear at all whether the disbarred lawyer ethically could be engaged by a practicing lawyer to conduct supervised legal research. And, no matter what the employing lawyer decides, he will still be dogged by uncertainty. Such uncertainty points up the need for a definite bright-line test that would give the employing lawyer confidence that his actions comport with the present ethical rules and would make the employing lawyer responsible for the disbarred lawyer’s conduct and work product.
Moreover, Code Canon 9, which led the committee to devise the balancing test in the first place, can be said no longer to apply to this situation. The new ethical rules deliberately chose not to adopt Code Canon 9's expansive but vague admonishment to avoid impropriety. Instead, the new rules chose to incorporate specific admonishments for conduct or behavior considered to be improper. See, e.g., ER 1.11 (successive government and private employment): ER 1.12 (former judges); ER 1.15 (safekeeping of property); ER 8.4(c) and (e) (dishonest conduct; state or imply improper influence of government official). As a result, the broad somewhat diffused admonishment of Code Canon 9 has now been transformed into focused specifics. Significantly, there is no specific prohibition concerning the impropriety of hiring or engaging a former lawyer. Thus, the test has ceased to have a mooring under the present Rules.
Accordingly, the committee now adopts the bright-line test of allowing a former lawyer to do anything a nonlawyer could do. By such an adoption, the committee relies upon the present Ethical Rules to ensure that the disbarred employee does not engage in unauthorized law practice or in unethical behavior. ER 5.3 places an affirmative obligation upon the lawyer-employer to supervise his nonlawyer employees, especially in regard to ethical obligations. In addition, ER 5.5 strictly forbids a lawyer from assisting anyone in the unauthorized practice of law. A lawyer who employs or engages a lawyer who has been disbarred should pay careful attention to these two ethical requirements.
1This test is the same as the guideline prescribed in Opinion 74-31 of the Unauthorized Practice of Law Committee (cited in footnote 1 of our Opinion No. 77-5) that a former lawyer may do “any act including conduct permitted by one never admitted to the practice of law.”
In sum, the committee now finds that a lawyer may employ or engage a disbarred lawyer in the same capacity as he would employ or engage any nonlawyer for assistance in his practice. In so finding, however, the committee cautions the lawyer-employer that special care must be exercised to ensure that the disbarred employee does not engage in unethical conduct or the unauthorized practice of law.
Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1987
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