Disbarred—but Not Barred from Work
In some states, disciplined lawyers can still work as paralegals or clerks
Posted Jun 5, 2007 1:57 AM CST
By Hope Viner Samborn
Disbarred or suspended attorneys sometimes choose to work as paralegals or law clerks. But while they are allowed to do that type of work in some states, in others they could end up in even deeper trouble if they attempt to do so.
In fact, states vary as to whether they permit disbarred or suspended attorneys to work in any capacity in a law firm. Massachusetts, for example, defines law firms broadly to include private practices and legal departments in corporate or legal services organizations, says Constance V. Vecchione of the Office of the Bar Counsel of the Supreme Judicial Court of Massachusetts.
“They can’t be employed as a janitor” in any of those places, Vecchione says. Ditto for Illinois, which asks disciplined attorneys to “remove themselves completely from the law firm environment,” according to James J. Grogan, chief counsel of the Illinois Attorney Registration and Disciplinary Commission.
On the other hand, California and Colorado allow disbarred or suspended attorneys to work as paralegals or law clerks handling legal research or drafting documents under the supervision of an attorney. That allows individuals to show that they have a current knowledge of the law--one of the requirements for reinstatement. But in each state, the supervising attorney must notify clients about the disciplinary action.
However, lawyers working as paralegals in California must know where the line is drawn at representing clients. Paralegals may represent individuals involved in licensing and workers’ compensation issues before the state without the supervision of an attorney. But for a disbarred attorney working as a paralegal, that work amounts to unauthorized practice of law, and the practice can be seized.
“It is representing clients,” says Scott Drexel, chief trial counsel for the State Bar of California. The state sought to seize 50 such practices last year, Drexel says.
A California appellate court found last year that “a defrocked lawyer ... may not practice law at all” and may not represent clients in state administrative hearings. Benninghoff v. Superior Court. 38 Cal. Rptr. 3d 759. The court said the lawyer was practicing law because he analyzed agency disciplinary guidelines, advised clients how to defend against disciplinary charges, responded to discovery requests, prepared hearing books and declarations, and examined witnesses at hearings.
In a recent Colorado case, a disbarred attorney was hired by his former firm--ostensibly operated by his former associates. The reality was that the disbarred attorney was still running the firm, according to Nancy L. Cohen, president of the National Organization of Bar Counsel. “It is going to be hard for you to supervise that person and tell them what to do,” she says.
Colorado then amended its law to require firms to tell clients when disbarred or suspended attorneys are working on a case.
However, courts have not decided whether engaging in activities permissible in one state would bar an attorney’s reinstatement in stricter states such as Massachusetts or Illinois.
Straight About Status
Academic environments also may pose certain challenges. Although many states permit disbarred or suspended attorneys to teach or write about the law, many require these attorneys to inform their employers about their disciplinary status.
In addition, clinical environments within law schools might be considered similar to law firms and are thus “fraught with danger because of the likelihood of interpreting or applying the law,” Drexel says.