Don’t Hire Disbarred Lawyer to Work in Your Office

By Roy Simon

[Originally published in NYPRR May 1999]

In October 1998, the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York issued an opinion strongly cautioning any lawyer before hiring a disbarred lawyer to work in his law office. The Committee did not flatly state that hiring a disbarred lawyer would always violate the Code of Professional Responsibility, but it does warn that hiring a disbarred lawyer to work in any capacity is “is fraught with ethical peril” and that it is “clearly improper for a lawyer or law firm to employ a disbarred or suspended attorney in any capacity related to the practice of law.” Here is a summary:

N.Y. City Bar Op. 1998-1 (1998)

An attorney is thinking about hiring a disbarred lawyer to work in her law office. What work, if any, may a disbarred lawyer perform in a law office? According to case law, a suspended or disbarred attorney “holds approximately the same status as one who has never been admitted…” This holding is consistent with Judiciary Law §486, which makes it a misdemeanor for any disbarred or suspended attorney to do “any act forbidden by the provisions of this article to be done by any person not regularly admitted to practice law…” Judiciary Law §478 also prohibits anyone not licensed and admitted in New York to practice or appear in court (other than pro se) or to act in any manner that would give the impression he is an attorney.

Thus, any lawyer who helps a disbarred attorney “keep up the appearance of continuing professional standing” is subject to discipline. Even inadvertently aiding a non-lawyer in the practice of law can warrant professional discipline. Moreover, the Rules of the First and Second Departments (603.13 and 691.10 respectively) require disbarred attorneys to “comply fully and completely with the letter and spirit” of the statutes relating to “the practice of law by an attorney who has been disbarred…”

Defining Unauthorized Practice of Law

To determine whether a lawyer is aiding a disbarred attorney in “the unauthorized practice of law,” it is first necessary to determine whether the disbarred attorney’s contemplated conduct would constitute “unauthorized practice.” Clearly, an attorney may not employ a disbarred lawyer to “conduct depositions or attend closings on the attorney’s behalf.” Beyond that, employing a disbarred lawyer “is fraught with ethical peril even with respect to activities that nonlawyers may properly engage in” because even permissible work by a disbarred lawyer “poses greater risk to the public than…performance by a nonlawyer.” For example, a recent case disciplined an attorney for authorizing a resigned attorney to “negotiate, draft and finalize” a contract of sale and an affidavit and to “appear” on the client’s behalf and “negotiate and execute” a forbearance agreement.

To provide further guidance as to what activities would constitute the “unauthorized practice of law” — a determination of law which was beyond the Committee’s jurisdiction — the Committee summarized more than a dozen cases explaining what a suspended or disbarred attorney may not do. The Committee noted that an attorney may file a motion in the Appellate Division to determine exactly “what a disbarred or suspended attorney may do in a specific instance. The Second Department recently denied one disbarred attorney’s motion to allow him “to be employed in a law office as a paralegal, law clerk or legal research assistant,” and N.Y. County Lawyers Assn. Op. 666 declined to opine on whether a law firm could properly employ a disbarred lawyer as a process server, messenger, secretary or investigator.

The Committee concluded by saying that “only the Appellate Division, on proper application, can decide such an issue or, for that matter, whether there are circumstances in which a disbarred attorney might be able to act as a paralegal” if he desists and refrains from practicing law in any form. Summing up, the Committee stated: “It is clearly improper for a lawyer or law firm to employ a disbarred or suspended attorney in any capacity related to the practice of law. What acts constitute the unauthorized practice of law is a question of law for the Appellate Division.”

Roy Simon is Professor of Law at Hofstra University School of Law and author of Simon’s New York Code of Professional Responsibility Annotated.

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Disbarment Roy Simon Unauthorized Practice