The Delaware State Bar Association

Ethically Speaking

Career Interruptus: What Attorneys May
And May Not Do During Suspension

by Charles Slanina, Esquire

Judging by the number of suspensions reported in this publication, it may be a good time to review what attorneys are permitted to do during their mandatory hiatus. This information has added relevance due to the number of attorneys who are employed during the suspension pending a return to practice.

Pursuant to Rule 22 of the Rules of Disciplinary Procedure, suspensions of six months or less resolve by automatic reinstatement. Add another day to the suspension and a Petition for Reinstatement must be filed and a hearing held. In either case, an attorney’s compliance with the terms of suspension is essential for a successful reinstatement. These terms can have implications for both the suspended attorney and any firm employing his or her services during the period of suspension.

The lead case on attorney employment during suspension remains, Member of the Bar 672 A.2d. 23 (Del. Supr. 1995). That matter involved an attorney who was suspended for one year. A petition was filed with the Court requesting instructions as to what he was permitted to do during that suspension.

The Court held that the attorney was not precluded from receiving payment of fees for past services during the period of that suspension. The attorney was also permitted to take appropriate means to collect any past due accounts. The attorney was advised that he was not precluded from being employed as a paralegal or law clerk during the suspension. However, the Court was quite specific as to limitations on that employment.

The attorney argued that he should be permitted some client contact in light of the fact that paralegals and law clerks routinely assist supervising attorneys in interviewing clients and completing Family Court forms, obtaining personal and financial data and completing Pre-Trial Asset Reports. The attorney further proposed that he would be strictly supervised; a sign on his office door would state that he was a paralegal or law clerk; a sign on his desk would note that he was a paralegal or law clerk; his business card would identify him as a paralegal or law clerk; and a written disclaimer to all clients in the fee agreement or elsewhere would advise clients that he was a paralegal or law clerk. Nevertheless, the Court’s instructions were that the attorney could not engage in direct contact with clients, witnesses or prospective clients or prospective witnesses regardless of the custom or nature of the practice. In so ruling, the Court stated, “Perception is often reality. It would be very difficult for the members of the public to be expected to understand [the attorney’s] status if he were permitted such contacts.” (Id pg. 4)

Other states have dealt with this issue differently. Louisiana’s Rule 5.5 dealing with unauthorized practice of law states that a lawyer shall not “(d) employ, contract with as a consultant, engage as an independent contractor, or otherwise join in any capacity, in connection with the practice of law, any person the attorney knows or reasonably should know is a suspended attorney, during the period of suspension, unless first preceded by the submission of a fully executed employment registration statement to the Office of Disciplinary Counsel, on a registration form provided by the Louisiana Attorney Disciplinary Board, and approved by the Louisiana Supreme Court.” That registration form requires production of the terms of employment of the suspended attorney, including the method of compensation and a statement by the employing attorney that includes a consent to random compliance audits during the period of suspension.

Similar to Delaware, Ohio permits suspended or disbarred lawyers to work for lawyers or firms but has recently required the hiring lawyer to sign an affidavit regarding the employment. That affidavit covers the scope and terms of the employment.

Rule 5.7 of the Minnesota Rules of Professional Conduct permits the employment of a suspended or disbarred attorney but prohibits the suspended or disbarred attorney from rendering legal consultation or advice to clients; prohibits the appearance of such an attorney before any trier of facts, arbitrator, mediator, referee, court or public agency; prohibits the appearance as a representative of the client at a deposition or other discovery matter; or prohibits the negotiation or transaction of any matter on behalf of a client. The suspended or disbarred lawyer may perform research, drafting, clerical or similar activities. The Rule specifically permits direct communication with a client or third parties regarding matters involving scheduling, billing, updates, information gathering, confirmation of receipt or sending of correspondence and messages, and allows the suspended or disbarred attorney to accompany an active lawyer to a deposition or other discovery procedure for the limited purpose of providing clerical assistance to the active lawyer.

California implemented Rule 1-311 of the California Rules of Professional Conduct which limits the employment of disbarred, suspended, resigned or involuntarily inactive members of the Bar by California lawyers. The Rule requires notice to the Bar and client when permitted paralegal or clerical work is done by such an attorney under the practicing attorney’s supervision.

While I don’t suppose that many suspended or disbarred attorneys will turn to this column for guidance, any Delaware attorney or firm employing such an attorney should be aware of these restrictions. Rule 5.5(a) of the Delaware Professional Conduct Rules prohibits a lawyer from assisting in the unauthorized practice of law. Any suspended or disbarred attorney working in your firm who does not comport themselves with Member of the Bar, may cause the employer to face their own disciplinary issues.