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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