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Commonwealth of Massachusetts


November 1998

The Prohibition Against Employment of Suspended or Disbarred Lawyers

by

Nancy Kaufman
First Assistant Bar Counsel

 

   When a lawyer loses the right to practice law, other members of the bar have responsibilities under the bar discipline rules not to employ the sanctioned lawyer in any capacity.

    In 1974, when the Supreme Judicial Court adopted S. J. C. Rule 4:01 establishing the Board of Bar Overseers and regulating the investigation and sanctioning of attorneys, there was no prohibition against an attorney's hiring a suspended or disbarred lawyer or, for that matter, against the suspended or disbarred lawyer's engaging in paralegal work during the term of suspension or disbarment. Rules of the Supreme Judicial Court, Rule 4:01, § 17, as appearing in 365 Mass. 710-711 (1974). On January 2, 1985, new amendments to Rule 4:01 took effect. Section 17, which governed suspended and disbarred attorneys, was changed to read:
 

Except as provided in Section 18(4) of this Rule, no attorney who is suspended or disbarred or has resigned under the provisions of this Rule shall engage in paralegal work, and no lawyer or law firm shall knowingly employ, in any capacity, a person who is suspended or disbarred by any court or has resigned due to allegations of misconduct.


    A further amendment to Section 17(7) on July 1, 1997, extended the rule to cover lawyers on disability inactive status. S. J. C. Rule 4:01, § 17(7), as appearing in 425 Mass. 1324 (1997).

    These amendments carry important consequences for attorneys who are in good standing with the bar. The rule imposes an affirmative requirement that the practicing attorney not "employ [ ] in any capacity" a lawyer removed from practice for misconduct or due to a disability. "In any capacity" means just that: the sanctioned or disabled lawyer cannot be employed even for non-legal work as a secretary, janitor, or messenger.

    In a recent case, the Board of Bar Overseers upheld a hearing committee's decision to suspend an attorney for, among other transgressions, hiring a lawyer he knew was suspended to perform odd jobs and courier services. Unbeknownst to the employer attorney, the suspended employee was able to collect legal fees from former clients by impersonating his employer on the telephone, signing the employer's name to legal documents, and using the law firm stationery. In addition to violating S. J. C. Rule 4:01, § 17(7), the employer violated Canon Three, DR 3-101(A) [now Mass. R. Prof. C. 5.5(b)] by thus facilitating the suspended lawyer's unauthorized practice of law.

    Indeed, the prudent attorney will ensure that anyone hired to practice law in the firm is in good standing. In Matter of Luongo, 416 Mass. 308 (1993), a lawyer named Ryan, who had resigned in Connecticut after his conviction for larceny and had never been admitted in Massachusetts, associated with Luongo, who was unaware of Ryan's status either in Connecticut or Massachusetts. Ryan proceeded to defraud the firm's clients and to convert their funds. Luongo's allowing this misconduct to go undetected, along with his own conversion of client funds, convinced the Supreme Judicial Court that Luongo should be indefinitely suspended instead of receiving a term suspension.

    Questions have been raised as to the meaning of the word "employ" as used in Section 17. In Matter of Rome, 10 Mass. Att'y Disc. R. 229, 230 (1994) (O'Connor, J.), a lawyer assented to temporary suspension of his license following his guilty plea to eleven felony counts of making false statements to a bank and bank fraud. He moved for permission to continue his "`employment [by attorneys only] as a self-employed real estate title abstractor.'" The lawyer argued that he would not be "`employed' by lawyers or law firms" because he would be an "independent contractor." Id. The single justice sidestepped the issue whether the lawyer's attorney customers would be "employing" him (and whether preparing title abstracts constituted paralegal work or the practice of law) by deciding that the court had the authority in any event to prohibit a temporarily suspended lawyer from preparing real estate abstracts. Id. at 231. In Matter of Oates, 5 Mass. Att'y Disc. R. 274, 275 (1986) (Liacos, J.), the court had no trouble concluding that "the governing rules prohibit the respondent from accepting employment, on a consultative basis or otherwise, as a title examiner." In Matter of Eastwood, 10 Mass. Att'y Disc. R. 70 (1994) (Wilkins, J.), the court refused to allow a lawyer to provide pro bono assistance at the registry of deeds and title abstracts for a "basic charge." Id. at 75. The court wrote, "`Employ' in sec. 17(7), in my view, means `use,' not simply `hire' as an employee." Id. at 77. This is how Bar Counsel views the word "employ" as well.

    Section 18(5) of S. J. C. Rule 4:01 permits a suspended or disbarred lawyer to apply for permission to work as a paralegal "[a]t any time after the expiration of the period of suspension specified in an order of suspension, or after the expiration of five years" from the date the lawyer was indefinitely suspended or disbarred or resigned under Section 15 of Rule 4:01. The court has discretion to allow or deny the motion and may impose whatever conditions are deemed necessary to protect the interests of the bar, the public, and the administration of justice. Any attorney who hires a suspended or disbarred lawyer under these circumstances should, at a minimum, be well-versed in the reasons for the suspension, disbarment, or resignation and understand fully the conditions imposed by the court on the hiring of the sanctioned lawyer and his or her performance of paralegal work.



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