BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1995-15

(Inquiry No. )

Topics:
Propriety of employing a suspended attorney to draft pleadings, contracts, trust agreements and wills, and to perform legal research as a “litigation analyst,” and duty to report employing attorney and/or suspended attorney to appropriate authorities
Digest:
Whether an attorney may ethically employ a suspended attorney to draft pleadings, contracts, trust agreements and wills, and to perform legal research as a “litigation analyst,” depends on the scope of the rules and statutes governing the unauthorized practice of law and the scope of the specific suspension order at issue. If the employing attorney knows that the suspended attorney would be violating the suspension order or engaging in the unauthorized practice of law, the employing attorney may not ethically employ the suspended attorney in the described capacity. Moreover, if the inquiring attorney learns that the employing attorney has hired a suspended attorney in a capacity that would violate the suspension order, the inquiring attorney may have a duty to report the employing attorney and/or the suspended attorney to the appropriate authorities.
Code Provisions:
Canon 1
EC 1-8
DR 1-102(A)
DR 1-103(A)
DR 3-101(A)-(E)
Facts Presented:
The inquiring attorney has learned that another attorney, “the employing attorney,” is employing a suspended attorney (“the suspended attorney”) to perform legal research as a “litigation analyst” and to draft pleadings, contracts, trust agreements and wills. The Appellate Division’s order suspending the suspended attorney notes that he was suspended based on his convictions for two “serious crimes” — criminal contempt in the second degree, and conspiracy in the fifth degree. The order of suspension provides, in relevant part, as follows:

[Tlhe respondent is commanded to desist and refrain (1) from practicing law in any form, either as principal or agent, clerk or employee of another, (2) from appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission or other public authority, (3) from giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) from holding himself out in any way as an attorney and counselor-at-law.

The order suspends the attorney for two years, and grants the suspended attorney leave to be reinstated if he furnishes:

satisfactory proof (a) that during the said period he refrained from practicing or attempting to practice law, (b) that he has fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended and resigned attorneys (22 NYCRR 691.10), and (c) that he has otherwise properly conducted himself ….

The referenced court rule, 22 NYCRR § 691.10, requires suspended attorneys to “comply fully and completely with the letter and spirit of sections 478, 479, 484 and 486 of the Judiciary Law,” and provide that a suspended attorney “may not share in any fee for legal services performed by another attorney during the period of his removal from the bar.”
Inquiry:
The inquiring attorney poses two separate inquiries:

1. Does it constitute the unauthorized practice of law or violate the applicable order of suspension for a suspended attorney, as an employee of a law office, to draft pleadings, contracts, trust agreements and wills, and to perform legal research as a “litigation analyst”?

2. What is the ethical obligation of an active attorney who learns that a suspended attorney, while employed in a law office, is engaged in the unauthorized practice of law or is violating the order of suspension?
Determination:
The Committee opines as follows:

1. Whether certain conduct constitutes the unauthorized practice of law or violates an order of suspension is a question of law beyond the jurisdiction of this Committee to answer.

2. If an attorney has knowledge that a suspended attorney is engaged in the unauthorized practice of law or is otherwise violating a suspension order while employed by another lawyer, the attorney is ordinarily obligated to report to the appropriate authorities both the lawyer that employs the suspended attorney and the suspended attorney himself.
Analysis:
The jurisdiction of this Committee extends only to interpreting the New York Code of Professional Responsibility. The Committee has no roving jurisdiction to interpret or construe statutes, court rules, or court orders.

Inquiry:

Inquiry No. 1: The first inquiry asks whether the suspended attorney is engaging in the unauthorized practice of law, or is violating the Appellate Division’s suspension order, by working in a law office where he is assigned to perform legal research as a “litigation analyst” and to draft pleadings, contracts, trust agreements and wills. These are questions of law that are beyond the jurisdiction of this Committee. See Nassau Ethics Op. 92-15 (propriety of employing a disbarred lawyer as a “paralegal” is governed by statute and is beyond the purview of this Committee). The Committee therefore does not respond to this inquiry.

However, the Committee notes that the inquiring attorney may be able to seek guidance on this issue from the Appellate Division that issued the order of suspension. Id. The Committee also notes that the American Bar Association, in AEIA Informal Ethics Op. 1434, has concluded that a lawyer may not employ a disbarred attorney, even to perform “non-legal” work such as office work. The New York County Bar Association reached a similar conclusion. In N.Y. County Ethics Op. 666, the committee stated:

It cannot be doubted that disbarment is always and everywhere intended to deprive the attorney of the right to practice law, and even if the disbarred attorney be employed to render such services only as may not constitute the “practice of law,” yet there is in every such case the danger that he will, under cover and cloak of such employment, perform such other services, either for his employer or for his own account, as under any construction of the law do constitute such practice. [Citations omitted.]

This Committee leaves it to the Appellate Division to determine whether the same logic applies to lawyers who are merely suspended rather than disbarred. This Committee believes that it does.

Inquiry No. 2: The second inquiry asks about the ethical duty of an attorney who learns that a suspended attorney, while employed by a law office, is engaged in the unauthorized practice of law or is violating his suspension order. For purposes of analysis, this Committee will assume that the suspended attorney is engaged in the unauthorized practice of law or is violating his suspension order, or both.

Canon I of the Code of Professional Responsibility provides: “A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession.” DR 1-103 (A) , the most important disciplinary rule at issue here, provides, in relevant part, as follows:

A lawyer possessing knowledge, (1) not protected as a confidence or secret, or (2) not gained in the lawyer’s capacity as a member of a bona fide lawyer assistance or similar program or committee, of a violation of DR 1-102 [1200.3] that raises a substantial question as to another lawyer’s honesty, trustworthiness or fitness in other respects as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

Thus, an attorney who obtains unprivileged knowledge that another attorney is violating DR 1-102 must ordinarily report that attorney to appropriate authorities if the violation of DR 1-102 “raises a substantial question” as to the lawyer’s “honesty, trustworthiness or fitness in other respects as a lawyer ….” The described facts do not suggest that the inquiring attorney’s knowledge is protected as a confidence or secret or was gained in connection with a lawyer assistance program.

As stated above, this Committee has no jurisdiction to determine whether a suspended attorney is engaged in the unauthorized practice of law. However, for purposes of analysis, the Committee will assume that if a suspended attorney is employed by a law office to perform legal research as a “litigation analyst” and to draft pleadings, contracts, trust agreements and wills, then the suspended attorney is engaged in the unauthorized practice of law and is violating the suspension order.

Given this assumption, Inquiry No. 2 has two distinct branches. First, what is the ethical obligation of the inquiring attorney regarding the employing attorney? Second, what is the ethical obligation of the inquiring attorney regarding the suspended attorney?

The employing attorney: The employing attorney may be violating various provisions of DR 1-102. That rule provides, in relevant part, that a lawyer shall not:

1. Violate a Disciplinary Rule. . . . . .

4. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

5. Engage in conduct that is prejudicial to the administration of justice. . . . . .

We bypass the question whether the employing attorney is violating DR 3-101(A)(1), which provides that a lawyer “shall not aid a non-lawyer in the unauthorized practice of law.” We need not answer that question, though, because there are other grounds for our opinion.

The employing attorney may be engaged in conduct involving “misrepresentation,” in violation of DR 1-102(A)(4), if he is representing the suspended attorney’s work as product as his own work product, whether the employing attorney is violating DR 1-102 (A) (4) depends on the degree to which employing attorney is supervising and reviewing the work of the suspended attorney, and what the employing attorney is telling clients, courts, and others about the suspended attorney. The Committee cannot determine these things based on the letter of inquiry.

The employing attorney may also be engaged in conduct “prejudicial to the administration of justice” by assisting the suspended attorney in violating the order of suspension. Flouting the terms of an order of suspension endangers the administration of justice by eroding the ability of the courts to restrict the activities of those who are not qualified to practice law.

This Committee does not have enough facts to determine whether the employing attorney is in fact violating any provision of DR 1-102. However, if he is, the question under DR 1-103 (A) (1) is whether those violations raise a “substantial question” as to his “honesty, trustworthiness or fitness in other respects as a lawyer.” This Committee believes that the suggested possible violations of DR 1-102 do raise such substantial questions. Therefore, assuming that the information is not protected as a confidence or secret and was not gained in the inquiring, attorney’s capacity as a member of a bona fide lawyer assistance program, the inquiring attorney has a duty under DR 1-103(A)(1) to report the employing attorney to the appropriate authorities.

The suspended attorney: Unlike a disbarred attorney, the suspended attorney has not been removed from office or stricken from the roll of attorneys in New York. See New York Judiciary Law § 90. Therefore, the Committee believes that the suspended attorney is still a “lawyer” for purposes of the duty to report under DR 1-103 (A) (1) A “non-lawyer” is beyond the reach of DR 1-103(A). See Nassau Ethics Op. 90-21 (lawyer generally has no duty under Code to report a non-lawyer’s illegal or unethical conduct) . However, a suspended attorney is not a “non-lawyer” for reporting purposes. Nor is a suspended attorney a disbarred lawyer over whom the disciplinary authorities have no jurisdiction. See Nassau Ethics Op. 92-16 (DR 1-103(A) does not require an attorney to report that a disbarred attorney has been practicing law) .
If a suspended attorney were not considered a lawyer for purposes of DR 1-103 (A), then a suspended attorney could engage in all kinds of misconduct and no one would have a duty to report the misconduct during the period of suspension. When the suspended attorney eventually applied for reinstatement, the court might not be aware that the suspended attorney had violated the suspension order. That would be prejudicial to the administration of justice. Therefore, this Committee is of the opinion that attorneys have a duty to report misconduct by suspended attorneys to the same extent that DR 1-103 (A) requires attorneys to report misconduct by attorneys in good standing.

As already stated, this Committee has no jurisdiction to determine whether the suspended attorney is violating his suspension order or engaging in the unauthorized practice of law. Assuming that he is, however, the analysis is the same with respect to the suspended attorney as it is with respect to the hiring attorney. The suspended attorney would be violating DR 3-101(B), which provides: “A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.” The suspension order itself cites to one of those regulations, 22 NYCRR § 691.22. The New York Judiciary Law contains other regulations as well against the unauthorized practice of law. For example, Judiciary Law 9 486 makes it a misdemeanor for a suspended attorney to practice law “unless the judgment, decree or order suspending him shall permit such act ….” (Emphasis added.) If he is violating DR 3-101(B), the suspended attorney is also violating DR 1-102 (A) (1) , which provides that a lawyer shall not “[vliolate a Disciplinary Rule.”

In addition, the suspended attorney would appear to be violating DR 1-102(A)(5), which prohibits conduct “prejudicial to the administration of justice,” because he is flouting the court’s order of suspension. Violating a suspension order endangers the administration of justice by reducing judicial power to control the activities of those who are not qualified to practice law.

Again, the question under DR 1-103(A)(1) is whether the violations raise a “substantial question” as to the suspended attorney’s “honesty, trustworthiness or fitness in other respects as a lawyer.” This Committee believes that the listed violations of DR 1-102 do raise such substantial questions. Therefore, assuming that the information is not protected as a confidence or secret and was not gained in the inquiring attorney’s capacity as a member of a bona fide lawyer assistance program, the inquiring attorney has a duty under DR 1-103 (A) (1) to report the suspended attorney to the appropriate authorities.

This opinion is consistent with Nassau Ethics Op. 93-41 (attorney must report fraud by bankruptcy attorney if information is not protected as a confidence or secret).

However, the Committee notes that DR 1-103(A) was significantly amended in 1990. Before 1990, DR 1-103(A) required lawyers to report unprivileged knowledge of any violation of a disciplinary rule. Since 1990, DR 1-103 (A) has required lawyers to report only those violations that raise a “substantial question” as to the suspended attorney’s “honesty, trustworthiness or fitness in other respects as a lawyer.” Therefore, opinions issued by this Committee based on the pre-1990 version of DR 1-103 (A) , such as Nassau Ethics Op. 90-9, may no longer be valid.

[Approved by the Executive Subcommittee on 8/22/95; approved by the Full Committee as modified on 8/30/95]