In the Matter of Joel R. Brandes, a disbarred attorney, Appellant.BriefN.Y.September 8, 2016APL-2016-00044 Appellate Division Second Department Docket No. 1999-07006 August 1, 2016 @llltrt nf J\pp.eals STATE OF NEW YORK .... In the Matter of JOEL R. BRANDES, a disbarred attorney, COMPENDIUM OF AUTHORITIES CITED IN APPELLANT'S REPLY BRIEF Appellant. CHRIS G. McDoNOUGH McDoNOUGH & McDoNOUGH, LLP 401 Franklin Avenue, Suite 210 Garden City, New York 11530 Telephone: (516) 387-0266 Facsimile: (516) 333-0200 Attorneys for Appellant TABLE OF CONTENTS PAGE 2015 ABA_upl_survey http://www.americanbar.org/content/dam/aba/administrative/prof essional_responsibility/2015_upl_report_final.authcheckdam.pdf. . . . . . . 1 California Rules of Professional Conduct, Rule 1-311 . . . . . . . . . . . . . . . . . . . . . 36 Colorado Rules of Prof.Cond., Rule 5.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 In the Matter of Sydney Vale STOLDT, an Attorney-at-Law, 37 N.J. 364, Supreme Court of New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Lawsuit, Shmawsuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Massachusetts SJC Rule 4-01, Bar Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Nassau County Bar Association Opinion 1995-15 . . . . . . . . . . . . . . . . . . . . . . . . . 72 New York County Lawyers' Association Opinion No. 666 (1985) . . . . . . . . . . 77 NYC Eth. Op. 1998-1 (N.Y.C.Assn.B.Comm.Prof.Jud.Eth.), 1998 WL 1557150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Rhode Island, Ethics Advisory Panel, Opinion No. 93-28 . . . . . . . . . . . . . . . . . . 89 South Carolina Ethics Advisory Opinion 92-20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 West’s F.S.A. Bar Rule 3-6.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 September 2015 © 2015 American Bar Association American Bar Association Standing Committee on Client Protection 2015 Survey of Unlicensed Practice of Law Committees INTRODUCTION The ABA Standing Committee on Client Protection conducted a survey on unlicensed practice of law programs in United States jurisdictions in 2015. This is the fifth survey the Committee has undertaken on the unauthorized or unlicensed practice of law since it published the 1994 Survey and Related Materials on the Unauthorized Practice of Law/Nonlawyer Practice. Previous surveys were completed in 1999, 2004, 2009 and 2012. The results of the survey are provided to courts, bar associations, lawyers, and members of the public and news media nationwide. Questionnaires were sent electronically to all jurisdictions in the United States. The Committee received responses from twenty jurisdictions. Where available, responses from the 2009 and 2012 Surveys were incorporated for those jurisdictions that failed to respond to the 2015 questionnaire. The following jurisdictions did not submit responses in 2009, 2012 or 2015: Georgia, Kansas, Massachusetts, Michigan, Minnesota, Nevada, and South Carolina. RESULTS OF THE 2012 UNLICENSED PRACTICE OF LAW SURVEY Current Enforcement Activity The majority of responding jurisdictions have definitions for both the “practice of law” and the “unauthorized practice of law”. “Practice of law” definitions are established by court rule in fifteen jurisdictions, by statute in sixteen, through case law in twenty-one, and through advisory opinions in three jurisdictions. Many jurisdictions have definitions in more than one resource, such as Pennsylvania, which has practice definitions in case law and advisory opinion. “Unauthorized practice of law” definitions usually are found either in statutes (fourteen jurisdictions), through a court rule (thirteen jurisdictions) or some combination of statute, rule, case law and advisory opinion. Enforcement authority against UPL is established by court rule in ninteen jurisdictions, by statute in twenty-eight. Most responding jurisdictions report enforcement authority by both statute and court rule. In most jurisdictions there are two or more authorities authorized to enforce UPL regulations, including states attorneys general, state bar committees/counsel, state supreme court committees/commissions, and local and county attorneys.1 UPL enforcement in the majority of the responding jurisdictions is funded through bar association dues or lawyer assessments or the state supreme court. Most jurisdictions either do not have a specific annual expenditure for UPL enforcement 1 This questionnaire was distributed ahead of the United States Supreme Court decision in North Carolina Board of Dental Examiners v. FTC. As a result of the ruling, many jurisdictions are re-evaluating UPL enforcement procedures. 1 1 September 2015 © 2015 American Bar Association or were unaware of the exact amount. The Florida Bar continues to lead the country in funding UPL enforcement, spending approximately $1.8 million annually. Other jurisdictions providing a significant budget for enforcement are Ohio, Colorado, Nebraska, and Texas. The penalties/sanctions for UPL violations that are available to enforcement authorities include (by number of responding jurisdictions): civil injunctions (35), criminal fines (23), prison sentence (21), civil contempt (20), restitution (15), and civil fines (15). Other remedies may be available. Most jurisdictions have several available remedies. Authorized Nonlawyer Practice Twenty-one jurisdictions authorize nonlawyers to perform some legal services in limited areas, generally under the supervision of a lawyer. Washington adopted the Limited Legal License Technician Rule in 2012 which allows properly licensed nonlawyer legal professionals to provide limited representation in family law matters. Of those responding to the 2015 questionnaire, six jurisdictions are contemplating the limits on nonlawyer service providers. Other allowable nonlawyer activities include: real estate agents/brokers may draft documents for property transactions or attend real estate closings; nonlawyers may attend (and in some states participate in) administrative proceedings; and participate in alternative dispute resolution proceedings. Many of these jurisdictions do not classify these activities as the practice of law. Disbarred/Suspended Lawyers The survey also asked questions regarding the law-related activities of disbarred lawyers. Twenty-two responding jurisdictions permit disbarred lawyers to engage in law- related activities while disbarred. Usually the disbarred lawyer’s conduct is regulated by court rules or case law that defines the supervision necessary for the disbarred lawyer working for a lawyer. The Future: What’s on the Horizon? Six jurisdictions (of those responding to the 2015 questionnaire) responded that they expect changes in UPL in the coming year. Those jurisdictions contemplate adopting additional rules, changes to current rules, expanding available penalties, reassessing enforcement, and issuing advisory opinions. If your jurisdiction has not submitted responses to the 2015 questionnaire, and would like to be included, you may forward your responses to Annie Kuhlman at annie.kuhlman@americanbar.org. If you have any questions regarding the 2015 Survey of UPL Committees, please contact Selina Thomas at selina.thomas@americanbar.org or 312/ 988-6721. Lindsey D. Draper, Chair Standing Committee on Client Protection September 2015 2 2 September 2015 © 2015 American Bar Association 3 3 September 20 15 (C 20 15 American Bar Association STATE AL AK AZ AR I I I I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement Does your jur isd iction have A2ainst UPL What j urisdiction have a defi nit ion of Regulatory Who pays a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? Ala Code 34·3-1; State Bar Committee, by members of ». Ala Rules of I Rule, Statute Rule 5.5, Ala. R. Prof. Statute Statute, Rule County Prosecutor the Alabama I Admission c. State Bar and taxes Rule; Case Yes; Alaska Bar Rule 1 Law: Other: Yes, Bar Rule 15(6), Statute (see State Prosecutor (see State of Alaska if 2, Section 2(c) Christiansen v. Bar Rule 63 Rule Alaska Statutes Alaska Statutes complaints are I Melinda, 857 P. 08.08 230) 08.08 230) prosecuted 2d 345 ( Alaska 193) Yes; Rules of the Yes; Rules of the Supreme Court of Rule Supreme Court of Rule Rule State Bar in general State Bar of Arizona, Rule Arizona, Rule Arizona 31(aX2XA) 31(aX2XB) rte; Case Law; Other - We have no definition of the "unauthorize d practice of law" , but Supreme Court Arkansas Yes; Ark. Code Ann.§§ I Statute; Case I No; Ark. Code Ann. § I I 4-109-101 Law 16-22-501 what we do Rule; Case Law Committee/Commissi Supreme Court have are on; Attorney General prohibited activities for non-lawyers, developed by case law and statute. The UPL W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? N/A I N/A Unknown I ..... Salaries and UPL enforcement is not benefits, space, budgeted separately. It equipment and is part of the Budget for supplies, Lawyer Regulation. tmveVeducation, Equipment and supplies; TraveVEducation/ $6,850 Training; Other- court reporters/court and witness fees September 20 15 (C 20 15 American Bar Association STATE CA co CT I I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement Does your jur isd iction have A2ainst UPL What j urisdiction have a defi nit ion of Regulatory Who pays a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? not boWld by just one lefinition. I I I State Bar pays for UPL enforcement to Yes, Sections 6125 et the ex1ent that seq. of the Business the enforcement Statute, Case I and Professions Code is conducted by I Yes. I Law, Advisory and Rules 1-300 and Rule, Statute Statute State Bar Counsel State Bar Opinion 1-311 ofthe disciplinary Californ ia Rules of COlmsel in the Professional Conduct State Bar's Office oft he ChiefTrial Counsel. ?ayment fot UPL Enforcement comes from the Yes; Yes; budget of the Office of httll://www coloradosu h!!Jl ://www.colorados Supreme Court Attorney llremecourt.com/lldfs/R Case Law Ullrernecourt.comllldfs Statute, Case Case Law Committee/Commissi Regulation I !lWJla!ignlJ.!.!!L%2QW!lb IR!lJlJ!la!iQnlJ.!.!!L%2Q Law on Counsel; the siteo/o200&A%20Final. Websiteo/o200&A%2 office receives ll!!f OFinal.lldf its fees from attorney registration fees paid by Colorado altO I Yes; Practice Book 2- Rule; Rule; Office of Disciplinary "The State or the I 44A available at Statute(CoM. Yes. Statute( Conn. Rule; Statute Co1msel Respondent I andCT General General W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? "The State Bar does not have a separate budget I N/A I Ut for UPL enforcement. $135,000 ($120,000 of Salaries and which goes to one FTE benefits, travel/education/ lawyer). training Not budgeted I NIA 2 September 20 15 (C 2015 American Bar Association STATE DE DC FL I I Does your 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement jur isd iction have What j urisdiction have a definit ion of A2ainst UPL Regulatory Who pays a definition of Sou rce of the Source of What is the entity is for UPL practice law? Definit ion una uthorized Defi nit ion a uthorized to E nforceme nt practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? Yes; Rule H of the I Rule; Statute I I Office of Disciplinary No. I Olse Law I Rules of the Board on Rule Counsel, arm of Delaware I the Unauthorized Delaware Supreme Supreme Court As stated in the answer to #8, the Court of Appeals ha<> no budget for I UPL District of Columbia enforcement. the Committee Yes · I I Yes. I I I Comt of Appeals The members of I \\Ww.dcappe~s.gov/dc I courts/docs/ru le49.pdf Rule www.dcappeals.gov/d Rule Rule Committee on on Unauthorized ccourts/doc/rule4 9 .pdf Unauthorized Practice Practice serve as of Law volunteers, and contribute their time and pay expenses such as postage and :opying 1 Bar cases are funded by part of bar budget funded bY annual 1 renewal fee. I No. I N/A I No. I NIA I Rule I State Bar Counsel, Respondent may State Bar Committee be ordered to pay costs if prosecuted. Criminal case W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? Not avai lable I I 0\ 1he Comt of Appeals has no annual budget I N/A for UPL enforcement. Salaries and benefits, space, $1.8mil equipment and supplies, traveVeducation, training 3 September 20 15 (C 20 15 American Bar Association Does your 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement jur isd iction have What j urisdiction have a definit ion of A2ainst UPL Regulatory Who pays STATE I a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? GA HI No. . No. . Statute Attorney General General Funds State Bar Committee, Idaho State Bar, Rule, Statute, State Bar ColUisel, ID I Yes. I Case Law I Yes, IBCR 801 (i) I Rule I Case Law Attorney General, Attorney General County Prosecutor or Prosecutor. Statute, Case Statute, Case Law, Statute, Case State Bar Committee, IL I No. I Law, Advisory No. Advisory Law Attorney General, N/A Opinion 0 inion Count Prosecutor 1 UPL State Bar Committee, enforcement is Supreme Court part of the IN I No. I N/A I No. I NIA I Rule I Committee/Commissi annual I on, Attorney General, disciplinary fee County Prosecutor assessed against Iowa Ia ers. 1 Supreme Court Yes; But not a I Rule and Case I I Rule and I Iowa Supreme lA I definitive one. Law Yes. Case Law Rule, Case Law Committee/Commissi Court on I I KS I I Rule, Statute Other; County UPL I SCR Yes. Yes · Rule SCR Prosecutor, KBA enforcement is W hat is the I How a re Annual Budget funds for UPL Enforcement? allocated? N/A Equip men $100. The staff time is supplies, included in Bar Travel/Education, ColUisel's Office training and Budget. Committee eXPenses, if any I I N/A N/A No dedicated budget. I N/A Salaries and benefits, space, equipment and $56,750 supplies, tmveVeducation, training $8,000 1 In addition to the above regulatory entities, private attorneys and law firms have standing to bring actions for the unauthorized practice of law. Mallen v. MylnjuryCiaim.com, 329 Ill. App.3d 953, 769 N.E.,2d 74, 263 Ill. 872 (1st Dist. 2002) 4 ......J September 20 15 (C 20 15 American Bar Association STATE LA ME MD MA - Ml - MN I Does your 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement jur isd iction have What j urisdiction have a defi nit ion of A2ainst UPL Regulatory Who pays a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? against la,.yer (including suspended or Office of Disciplinary disbarred) ODC O>unsel enforces is funded by Yes; RS37:212; I Rule, Statute, I I I I I Jurisprudence; RPC 5.5 Case Law No. NIA Rule RPC, Prosecutor annual attorney I enforces criminal assessments; as statute (RS37:213) to Judicial District Prosecutors, Louisiana taxpayers. I I..Nerseers v. MlUlgan, I Case Law I No. I I Statute I Attorney General I Attorney General Office I Yes. I Statute and Yes. Case Law Statute State Bar O>unsel, I Funds of Bar Case Law Attorney General counsel's office I I W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? None I N/A I 00 N/A Salaries and No set sum established benefits, space, traveVeducation/ 5 September 20 15 (C 2015 American Bar Association STATE MS MO MT NE NV NH NJ I I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART I Does your Enforcement Does your jurisdiction have A2ainst UPL What jurisdiction have a definition of Regulatory Who pays a definition of Sou rce of the Source of What is the enti ty is for UPL practice law? Definition unauthorized Definition authorized to E nforceme nt practice of law? source of enforce the UPL ? Enforcement Cite!URL: I I .. .. - Regulations? Yes; •,nuo."' ~ .... .._,...,,,,,,.,,n,"'' Darby v. Miss. State County Prosecutor, with referral to Board Bar Admissions, Yes, Miss. Code Am County Attorney or 185 So. 2d 684(M iss. Case Law § 73-3-55(1972as Statute Statute District Attorney. It 1he State Bar 1966); In Re: amended) becomes a felony Williamson, 838 So. 2d enforced by the DA if 226 (Miss. 2002) more than three. Yes; I Which ever hlllr//www.mg~amg.~ Statute No N/A Rule, Statute entity pursues I ov/mostatutes/stathtmll the enfOrcement. Advisory State Bar of Statute and I Yes. I I Opinion, Other; Montana, no I Yes. I Case Law M\'I>Lmontanabar.ora Case Law Commission an Court funding, UPL- Supreme Ct. appointee volunteers Supreme Court Yes; Neb. Ct. R. §3- I I Yes, Neb. Rev. stat. 7- I I I Committee/Commiss i Nebraska State I 1001 Rule 101 Statute Rule, Statute on (rule), County Bar Association Prosecutor (Statute) I Statute, NH I Yes. RSA 311:2 No. NIA - Attorney General NHDOJ Statute - NJSA Eoforced by I No. I N/A No. NIA 2C:2 1-22 County Prosecutor local po lice; I What is the I How are Annual Budget funds for UPL Enforcement? allocated? Unknown; it is a volunteer committee, with an attorney from I Space, equipment the Office of General and sup pi ies Counsel serving as liaison. No amount specifically N/A allocated for UPL I '-= Travel/Education/ Training. Other; State Bar of $1500 Montana supports Commission with staff person, office and e< Sala1 benefits, space, equipment and $75,000 supplies, travel/education/ training, 'rofessional fees I No exoress enforcement I N/A Unknown I N/A 6 September 20 15 (C 20 15 American Bar Association Does your 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement jur isd iction have What j urisdiction have a defi nit ion of A2ainst UPL Regulatory Who pays STATE I a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? State Bar Counsel, implemented in Rule, Statute, I State Bar Committee, 2011: rule NM I No. I N/A I No. I NIA I Attorney General; updates pending I Case Law Local bar certified by -no enforcement State Bar act ion at this ti It is one v • u•~ functions of the Attorney NY I No. I I No. I I Statute I Attorney Geneml I General, and is, therefore, included in his overall Yes; NC Gen. Statute I Statute, Case I I I I The North I NC I No. NIA State Bar Committee, Carolina State 84-2.1 Law County Prosecutor Bar The state pays the expenses of the Consumer Protection Supreme Court Committee. On those ex1remely 1 NO I No. I I No. I I Statute I Committee/Commissi rare instances of on, Attorney General, a criminal County Prosecutor prosecution (unauthorized practice of law, while not defined, is a W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? $0.00 I N/A I I ~ There is no speci fie = amount within the Attorney General's N/A budget. Undefi ned, part of the I N/A office of counsel It is not a budgeted I N!A item. 7 September 20 15 (C 20 15 American Bar Association STATE OH OK OR I I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement Does your jur isd iction have A2ainst UPL What j urisdiction have a defi nit ion of Regulatory Who pays a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? Yes, h!!Jl:/1\\ww.sullremec Supreme Court No. I I ourt.ohio.gov/I,egaiRe Rule Rule, Statute Committee/ The Supreme Court of Ohio sources!Rules/govbar/ Commission swvbar.odf11Rule7 Yes; R.J. Edwards v. State Bar Co1msel, Hert, 1972 OK 151,20, Oklahoma Bar 1he budget of 504 P. 2d 407 the Office of the Association and the 1 httll://"ww.os£n.n~t/all Case Law No. NIA Rule Profess ion a I General Counsel, 111 icat ions/oscn/ de I iverd Responsibility Oklahoma Bar ocurnent.as11?cite= 1972 Association +ok+l51 Commission Yes; The practice of law is defi ned in case law, See e.g. Oregon Case Law Oregon RPC 5.5 and Other: Statute State Bar Counsel Oregon State Bar I Case Law Bylaws State Bar v. Security Escrows, Inc. 233 Or W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? supplies, traveVeducation/ training, books and subscriptions, $153.750.00 reimbursements of board members, reimbursement of bar association I ~ expenses related to ~ prosecution of I , the investigation and prosecution of UPL is not a line item in our budget. A budget proposal including provisions for an I N/A attorney and investigator was submitted to the Oklahoma Supreme Court for their approval 1. Equipment and supplies, traveV $5,000 education I training; Prosecution but typically pro bono 8 September 20 15 (C 20 15 American Bar Association Does your 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement jur isd iction have What j urisdiction have a defi nit ion of A2ainst UPL Regulatory Who pays STATE I a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? ThePBAUPL committee has been very successful in issuing Cease and Desist letters to persons against whom complaints have been filed. Case Law, I I However, the PA I Yes; Various court I Advisory I Yes. 42 Pa.C.SA Sec I Statute; Case I Statute Attorney General; committee has opinions. Opinion 2524, etc Law County Prosecutor no enfOrcement powers other than to initiate a law suit under the applicable state statutes. If enforcement is necessary, the mater is referred to the AG's off or the local district I I I I I I I attorney. RI - sc SD I No. I N/A I No. I NIA I Statute I State Bar Committee, I State Bar Attorney General, W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? I ~ N Minimal Equipment and supplies, research 9 September 20 15 (C 2015 American Bar Association STATE T N T X UT I I I 2015 SURVEY OF UNLICENSED PRACTICE OF L AW COMMITTEES CHART I Does your Enforcement Does your jurisdiction have A2ainst UPL What jurisdiction have a definition of Regulatory Who pays a definition of Sou rce of the Source of What is the enti ty is for UPL practice law? Definition unauthorized Definition author ized to E nfo rcement practice of law? source of enfo rce the UPL ? Enforcement Cite!URL: I I .. .. - Regulations? party State Bar Committee, bringing the suit Supreme Court pays (Attorney Commimee/ Geneml, Bar Statute, Case I Yes, Tenn. Code Ann. I Statute, Case I I Commission, Association, or Yes. I Law §23·3· 103(a) (2008) Law Statute Attorney General, individual). I There is the County Prosecutor, ability to obtain and there is also a I private right of action. attorneys ' fees from the fend ant. The Texas Unauthorized Practice of Law Yes; Texas I I I I Statute, Section Committee is Government Code § Yes, Texas 8 1.1 04(2) of the Supreme Court funded by the 8 1.1 01 Statute Government Code § Statute Texas Committee/Comm iss i State Bar of 81.102 Government on Texas and Code appo inted by the Supreme Court of Texas. Yes; http ://www.u!courts.go Y.ll:l:S!:!III:ll!:Slllll~sltl~iiiL!; I h l.d.JnS!: Oh.."') O«;:.n~i!liO/-."')(\ Rule No. NIA Statute State Bar Committee Utah State Bar What is the I How are Annual Budget funds for UPL Enfo rcement? allocated? I N/A I I ~ (.M Equipment and supplies, TraveVEducation/ Training, State Committee Quarterly Meetings, day to $ 170,000 day expenses for conducting UPL investigations on the subcommittee level. All Committee members are volunteers. $35,000. This figure is Salaries and included in the budget benefits, space, for the General equipment and Counsel. The UPL supplies, Committee members traveVeducation/ 10 September 20 15 (C 20 15 American Bar Association Does your 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement jur isd iction have What j urisdiction have a defi nit ion of A2ainst UPL Regulatory Who pays STATE I a definition of Sou rce of the Source of What is the entity is for UPL practice law? Defi nit ion una uthorized Defi nit ion a uthorized to E nforcement practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? W hat is the I Annual Budget for UPL Enforcement? Yes; In re Welch, 123 Yes; In re Welch, 123 Attorney General, Whatever office I There is no amount 1 VT I Case Law Case Law Case Law initiates the Vt. 180(1962) Vt. 180(1962) County Prosecutor action specified in any budget. Yes; Part 6 §I (B) Rules of the Virginia Supreme 1here is no specific line Court h!!Jl://www. vsb.orgL(lrO Yes; State Bar Committee, The Virginia item for UPL h!!ll://vsb.orgLilro- Statute, Code of Standing Committee State Bar enforcement; expenses VA I I!Ui!:l!: lin!l!lli~d~x.llhlliun Rule guide I inesl index.(1bll[ Rule Virginia, Section includes UPL are paid out of the unauthorized-11ractice- 54. 1-3910 on Unauthorized enforcement in budget allocated for authorized-(1mctice- Practice of Law rules/ its budget. Professional rules/llra~"lice-of-law- in-th£;£Ommon":!:alth- Regulation. Q(·~'imioiaL The Practice Supreme Court Law Board Committee/Conunissi administered by on; theWSBA Attorney General; investigates UPL County Prosecutor; complaints, The POL Board 's Yes; Statute; The Practice of Law attempts to enter arulUal budget for 2009 Board was established into cease and http://www.courts. wag http://apps.Ieg. w by the Supreme Court, desist is $173,846. ov/court rulesl?fa=cour a.gov/RCW/defa WA I t_rules.dlsplay&group= Rule No. in part, to investig;~te agreements with ult.aspx?cite=2.4 and enforce UPL. violators, and The state and county ga&set=GR&ruleid=g;~ 8.180 However, the Board refers violators expenditures are from gr24 has limited to county their general funds. enforcement authority prosecutors and and refers cases to the other county prosecutor and enforcement the Attorney agencies. The General's Office. POL Board's How are funds allocated? N/A Salaries and benefits, I ~ Tmvelleducation/ ..... training Salaries and benefits, space, equ ipment and supplies, travel/education/ train ing 11 September 20 15 (C 2015 American Bar Association STATE wv WI WY 2015 SURVEY OF UNLICENSED PRACTICE OF LAW C OMMITTEES CHART I Does your Enforcement Does your jur isd iction have A2ainst UPL What j urisdiction have a definit ion of Regulatory Who pays I a definition of Sou rce of the Source of What is the entity is for UPL practice law? Definit ion una uthorized Defi nit ion a uthorized to E nforceme nt practice of law? source of enforce t he UPL ? Enforcement Cite!URL: I I .. .. - Regulations? $173,846. The state and county enforcement are funded by the state and countv. Rule; Other: by West Virginia I order of the State Bar for I Yes. I WV Supreme No. NIA Rule; Statute State Bar Committee, committee Attorney General Court of efforts Each count;):: e!!~ PA 757.30and SCR I I 757.30 and SCR enforcement is The state, to the criminal extent it is I Dllll "££~VI~!;.'!UW ~~£~!Mt::2 I Rule, Statute I Rule, Statute prosecution County Prosecutor prosecuted by I under the district attorneys, statutes, not the who are state court rule. f1mded. Wyoming Supreme Yes; Rule 11.1; Court Rules Governing Wyoming Court I I Wyoming State Rule, Statute, Rules: Bar I Rule, Statute, ~ State Bar Committee, 1 the Organization of the Case Law Associ at ion Case Law Rule, Statute County Prosecutor Bar General I Wyoming State bar and Organization & Fund the Regulation of the Governance W hat is the I How are Annual Budget funds for UPL Enforcement? allocated? I I ~ None set. Funding obtained Ut as needed. NIA I NIA As requested I Entirely volunteer 12 September 2015 © 2015 American Bar Association 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART II STATE AL AK AZ What remedies sanctions are available against someone engaged in the UPL? Civil injunction, civil contempt, and Criminal fine Criminal fine, prison, restitution Civil injunction, civil contempt, civil fine, restitution How active is .iurisdiction in enforc ing the UPL regulations? Active Association has been working with the Alaska Supreme Court for many years to arrive at a definition for injunctive under AS 08.07.210, but no defmition Active Does your jurisdiction permit any nonlawyer practice?; Yes; Legal assistants/paralegals under the of an No. assistants/paralegals under the supervision of an attorney, document preparers. In addition, we have a constitutional provision allowing real-estate agents to engage in what would constitute the pmctice of law, and also have a myriad of other exceptions allowing others to engage in limited If nonlawyer practice is permitted , is it regulated/ licensed ? No. N/A Yes; State Bar and Supreme Court, other Regulatory Entity/Boaro Nonlawyers may engage in the following: Attend administrative proceedings participate in state administrative proceedings, and Participate in alternative disoute resolution Prepare pleadin~willslother legal documents, Attend administmtive proceedin~. attend real estate closin~. participate in state administrative proceedin~. participate in alternative dispute resolution proceedings, prepamtion of immigration forms (outside of Federal Regulations allowing limited nonlawyer representation) ; All United States jurisdictions allow for limited practice by law students with lawyer supervision. See, ABA Model Rule Relative to Legal Assistance By Law Students. ~ 0\ September 2015 © 2015 American Bar Association 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART II STATE AR CA co What remedies sanctions are ava ilable aga inst someone engaged in the UPL? Civil injunction, civil contempt, civil fme, criminal fme Civil injunction, civil contempt, prison Civil injunction, civil contempt, civil fme, criminal fme, prison, restitution How act ive is .iu risd ict ion in enforc ing the UPL regulations? Active oiActive Active Does your jur isd ict ion perm it a ny nonlawyer pract ice?; No. assistants/paralegals under the supervision of an attorney, ;, document preparers, and unlawful detainer assistant. Neither these persons nor document preparers may law. assistants/paralegals under the supervision of an attorney, real estate brokers, to a limited extent, other non- lawyers based on authorization of the relevant If nonlawyer pract ice is permitted, is it regulated/ licensed ? No. Yes; Other Regulatory Entity I Board Nonlawyers may engage in t he fo llowing: Prepare pleadin~wills/other legal documents, attend administmtive proceedin~, pre-trial activities, negotiate legal matters, appear in court, Hattend real estate closings, participate in state administrative proceedings, participate in alternative dispute resolution proceedin~. Other: a person can represent himself pro se but cannot do the things listed above on Completing legal documents in a ministerial manner and providing published factual infonnation approved by an attorney Attend administrative proceedin~. attend real estate closings, participate in state administrative proceed in~ ii Real estate brokers may fill in the blanks in connection with simple real estate transactions in standard warranty deeds, quitclaim deeds, release deeds, bills of sale, lease agreements, and mortgages with power of sale under the following restrictions: ( I) That the person for whom the broker is acting has declined to employ a lawyer to prepare the necessary instruments and has authorized the broker to do so; (2) that the forms are approved by a lawyer either before or after the blanks are filled in but prior to delivery to the person for whom the broker is acting; (3) that the forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker' s business (4) that the forms shall be used only in connec tion with real estate transactions actually handled by such brokers as a broker; (5) that the broker shall make no charge for filling in the blanks; and (6) that the broker shall not give advice or opinions as to the legal rights of the parties, as to the legal effects of instruments to accomplish specific purposes of as to the validity of title to real estate. 111 In 2006, the Office of the Chief Trial Counsel created a UPL team to handle UPL cases in Southern California The team doubled in size in 2007 from its original size of two attorneys and three investigators to four attorneys and s ix investigators. Both the creation of the team in 2006 and the expansion of the team in 2007 were accomplished without any additi onal budgetary funds or the creation of any new positions. iv For the most part, the only nonlawyer practice permitted in our jurisdiction is the work oflegal assistants and pam legals under the supervision of an attorney. There are, however, some limited exceptions permitted by statute. Section 6400 et seq. of the Business and Professions Code permits a nonlawyer to render assistance or advice in the prosecution or defense of an unlawful detainer claim or action and to provide self-help service to clients." Section 5501 of the California Labor Cnde allows nonlawyer representation before the Workers Compensation Appeals Board (WCAB) if the representation is authorized in writing and the representative has notified the WCAB in writing that he or she is not an attorney licensed by the State Bar.;• And section 5700 of the Labor Code permits a nonlawyer to represent a party in hearin~ on workers compensation applications and to present testimony pertinent under the pleadings on behalf of the party at those hearin~.;v (See also California Bar Committee on Profess ional Responsibility formal opinion 1988-103, which opines that a law firm may delegate authority to a paralegal employee to make appearances at Workers' Compensation Appeals Board hearings and to file petitions, motions or other material allow a paralegal to represent clients at workers' compensation hearings where the client consents to the nonlawyer representationf Under section 1957 of the California Unemployment Insurance Code, a nonlawyer may represent any individual claiming benefits in any proceed in~ before the California Unemployment Insurance Appeals Board.;v Some federal agencies with offices in California also permit nonlawyer representation. Those agencies are not listed here. 2 ~ ......J September 2015 © 201 5 American Bar Associa tion 2015 SURVEY OF UNLICENSED PRACTICE OF L AW COMMITTEES CHART II STATE CT DE DC FL GA HI ID What remedies sanctions are available against someone engaged in the UP L? Civil inj1mction, civil fine Civil contempt Civil injunction, civil contempt, criminal fme, prison, restitution Civil injunction, civil contempt, civil fme, criminal fme, felony conviction, prison, and restitution Criminal fine, prison Civil injunction, civil contempt, civil fme, prison, and restitution How active is .iurisdiction in enfo rc ing the UPL regulations? Active a cease desist letter which usually wodt, Rarely do we file Active Active Active prosecution is from the Attorney General, Consumer Protection division under Consumer Protection Act. Occasional County Prosecutions. Idaho State Bar more active wi th attorney UPL Does your jurisdiction permit any nonlawyer practice?; No. No. paralegals under the supervision of an attorney; Other: Exceptions for non lawyers to the general rule that only lawyers can engage in the practice of law are set forth in Rule 49( c). For example: U.S. Government employee or practitioner; pro hac vice and pro bono publico legal services; incidental and temporary practice. Yes; Legal technicians, legal assistants/paralegals under the supervision of an attorney, document No Yes; Legal assistants/paralegals under the supervision of an attorney, if they are not licensed, so no independent non-lawyer practice. If nonlawyer practice is permitted , is it regulated/ licensed ? Yes; By Federal and D.C. agencies to extent they permit non lawyers to practice before them and supervision by the D.C. Bar members. Other Regulatory Entity/Board. Yes; State Bar Yes; Rule Nonlawyers may engage in the fo llowing: Attend administrative proceedings( only if allowed by agency), attend real estate closings (doc signing only), participate in state administrative proceeding; (if permitted by agency regulations); Participate in alternative dispute resolution proceeding; if allowed Attend administrative proceedings, participate in state administrative proceedings documents, attend administmtive proceedings, pre-trial activities (take depositions, etc.), give legal advice, negotiate legal matters, appear in court, attend real estate closing;, participate in state administrative proceedings, participate in alternative dispute resolution proceedings, prepamtion of immigration forms (outside of Federal Regulations allowing limited nonlawyer representation). Exceptions for nonlawyers to the general rule that only lawyers can engage in the practice of law are set forth in Rule 49(c). For example, U.S. Government employee or practitioner; pro hac vice and pro bono publico legal services; Attend administrative proceedings, participate in state administrative proceedings Yes. They are prohibited from practicing law and from maintaining a presence or occupyi ng a law office, not much activity is permitted. I.B.C.R. 516. 3 ~ 00 Septe mbe r 2015 © 2015 American Bar Association 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART II STATE IN l A KS KY LA ME MD M A MI MN What remedies sanctions are a vailable against someone enga ged in the UPL? Civil injunction, restitution Civil injunction, civil contempt Civil injunction, civil contempt, civil fine and criminal fine Criminal fine, prison, discipline by Supreme Court Civil injunction, criminal fine, prison, restitution Civil injunction, civil contempt How active is .iurisdiction in e nforc ing the UPL regulations? Active Active Active Active; In the context lawyer discipline, prosecution by ODC is very aggressive; as regards criminal prosecution, Attorney Geneml's Office regularly meets with representatives from the Board of Overseers and BoaJd of Bar Examiners to review complaints and referrals and discuss appropriate action and Active Does your jurisdiction permit any nonlawyer practice?; Yes; Legal assistants/paralegals under the supervision of an attorney, Limited Domestic Violence Counselors, Limited Real Estate (see Rules 37.4 and No. Yes; http'//www majnelegjslature org/legis/statutes/4/title4sec8 07.html No. If nonlawyer practice is permitted , is it regulated/ licensed ? No No. N/A N/A No. Yes. Nonlawyers may enga ge in the following: Attend real estate closings Participate in administrative proceedings if allowed by Rule. N/A N/A Prepare pleadings/wills/other legal documents, attend administrative proceedings, appear in court, participate in state administrative proceedings, other: practice permitted within the exceptions enumerated by 4 MRSA807. Case Law 4 ~ '-= Septe mbe r 2015 © 2015 Ame r i ca n Bar A ssociatio n 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART II STATE MO MT NE NV N H NJ NM NY I I W h at r e m ed ies s a n c t io n s are a va ilable aga inst s omeo n e e n ga ged in t h e UPL? Civil injunction, criminal fine Civil injunction and civil contempt I I I Civil injunction (rule), civil contempt I (rule), criminal fine (statute) I I I Civil injunction I H ow act ive is .iu r isd ic t ion in e nforc ing t h e UPL regulatio ns ? Not Active Active, to the extent allowed with limited resources. Court rules became effective 1/1/08. Enforcement is becoming more active by commission on UPL. Enforcement by County Prosecutor is not active. Active rive: Some jurisdictions law enforcement offices are more active than others, depending on the press of other Does y o u r jur isd ic t ion p e rm it a ny n o nla wyer p ract ice?; I assistants/paralegals under the supervision of an attorney, document arers I No. No. I Yes; Any citizen of good moral chamcter may represent another as long as the person is not commonly practicing as an attorn I I Prison, 4th degree crime, not a felony I resources. The Court Assistants/Paralegals under I matters and allocation of I Yes; Legal Committee has no enforcement the supervision of an attorney authority but works to educate violators and seek agreement to cease the unauthorized practice of law. Not Active; New Statute I Civil inj1mction, civil fine, restitution I passed in 2011: Rule updates No. pending 1 Civil injunction, civil fine, criminal 1 Not Active; AG brings cases No. fme, felony conviction occasionally If n onlawyer pract ice i s p e rmitted , is it r egulated / lic e n sed ? No. N/A - Yes; Supreme Court No. N/A Yes; Other Regulatory Entity/Board • There is a court I Nonla wyer s may e n ga ge in t he fo llo w ing: Prepare pleadings/wills/other legal documents, administrative proceedings, give legal advice, participate in state administrative proceedings and participate in alternative dispute resolution proceedings. Other; These are areas we see nonla' Attend administrative proceedings, attend real estate closings, participate in state administrative proceedings, only as permitted (not prohibited) by Court Rules N/A Attend administrative proceedings, attend real estate closings, participate in state administrative proceedings, participate alternative dispute resolution Since there are no oetmtt tons, much ot thiS ts unclear. I N = 5 Septe mbe r 2015 © 201 5 A merican Bar Associa tion 2015 SURVEY OF UNLICENSED PRACTICE OF L AW COMMITTEES CHART II STATE NC NO OH OK OR PA Rl sc so Wha t remedies sanctions are a vailable a gainst someone enga ged in the UP L? Civil injunction, criminal fine, prison Crimina I fine, prison Civil if1junction, I contempt, civil Civil inj1mction, civil contempt, and other remedies may exist Civil injunction, civil fine, prison, restitution Civil if1junction, Civil Fine, criminal fme, prison, restitution. Civil inj unction, civil contempt, criminal fme How active is .iurisdiction in e nfo rc ing the UPL regulatio ns? Active Not Active Active Active; Our office did not actively prosecute UPL until 2010. At this point, we have limited resources. We are attempting to take a more active role in investigating and UPL. investigates and makes dec isions on whether to ask for Active admonition; step two, if admonition is ignored, and civil injunction, criminal is available Does your jurisdictio n permit any nonlawye r practice?; No. No. No. Yes; By statute, non lawyers may appear in certain administrative proceedings Yes; Legal assistants/paralegals under the supervision of an attorney assistants/paralegals under the supervision of an attorney, document No; Appearances allowed in small claims court, before some adm in istrative agencies If nonlawyer practice is permitted , is it regulated/ licensed ? sponsored "Navigator's" program in New York City Housing Court and debt coll ection in the New York City N/A N/A N/A No. No. No. No. Nonlawyers may enga ge in the fo llowing: Participate in s tate adm in istrative proceedings Attend real estate closings Attend administrative proceedings, Appear in small claims court only, attend real estate closings as title agents, participate in state administmtive proceedings v In 2008, the UPL Committee received 45 new matters for investigation. They resolved 74 cases after investigation. Dispositions included: dismissals, admonition letters, notice letters, cease & desist agreements, and referrals for prosecution. In 2008 we resolved two matters by cease and desist agreements and four new cases were approved fur prosecution. We normally have about five open UPL prosecutions at any given time. 6 N ~ September 2015 © 201 5 American Bar Association 2015 SURVEY OF UNLICENSED PRACTICE OF L AW COMMITTEES CHART II STATE T N TX UT VT VA WA What remedies sanctions are available against someone engaged in the UP L? Civil inj1mction, civil fine, criminal fine, prison, restitution Civil injunction, civil contempt, prison Civil injunction, civil contempt, civil fine Criminal fine, prison Civil injunction; civil contempt, prison, restitution Civil injunction, criminal fme, prison, restitution; Other: There is no specific civil injunction available for UPL How active is .iurisdiction in enfo rcing the UPL regulations? limited ci rcumstances and is in discretion of local prosecuting Active very active. In the 2014 calendar year, the UPLC received 410 filed complaints. The State Committee granted suit authority for 8 cases, 13 cease and desist agreements were obtai ned, and 3 permanent injunctions were ordered. There are 247 members State- wide serving on the Committee. NIA Not Active Active Not Active; The Practice of Law Board investigates and processes 30- 50 cases per year on average. A percentage of these cases are referred to prosecutors. The Board is aware of I case that was actually prosecuted. Does your jurisdiction permit any nonlawyer practice?; Yes; Legal assistants/paralegals under the supervision of an attorney Yes; Legal assistants/ paralegals under the supervision of an attorney, if allowed by No. Yes; Legal assistants/paralegals under the supervision of an attorney Yes; Other: Umited Practice Officers in real and personal property transactions If nonlawyer practice is permitted, is it regulated/ licensed ? Yes. Other Regulatory Entity I Board No. No. N!A No. Yes; Supreme Court and other regulatory Entity/Board Nonlawyers may engage in the fo llowing: may hearings Attend administrative proceedings, appear in court, participate in state administrative proceedings, and participate in alternative dispute resolution proceedings Nonlawyers can act as mediators _ . estate closings, participate in state administrative proceedings and participate in alternative dispute resolution matters, attend real estate closings. Other; Non lawyers may provide representation at administmtive hearings if permitted by the agency. Any one in Washington can provide general information about what the law is and may sell legal forms. Limited Practice Officers can prepare specific forms approved by the Umited Pmctice Board. These forms are connected with real estate closings. If the vi Effective September 1, 2012, the Washington Supreme Court adopted Rule 28 of the Washington Admission to Practice Rules allowing for Limited Legal License Technicians. 7 N N September 2015 © 2015 American Bar Association 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART II STATE wv WI WY What remedies sanctions are available against someone engaged in the UPL? Civil injwtction; criminal fme Crimina I fine, prison Civil injunction, civil contempt How active is .iurisdiction in enforcing the UPL regulations? Active Not Active Active; All complaints are formally processed and decided. Does your jurisdiction permit any nonlawyer practice?; Yes; Legal assistants/paralegals wtder the supervision of an attorney, document pre parers, if under the supervision of a licensed assistants/paralegals under the supervision of an attorney; See SCR Chapter 23: http·/lwjcourts goyfsg/rules!Q iso lavOoument.html?content= No. If nonlawyer practice is permitted, is it regulated/ licensed? Yes; State Bar, Supreme Court Yes; Other Regulatory Entity/ Board N/A Nonlawyers may engage in the following: techn icians will be permitted to give legal advice regarding forms in specific areas of the law approved in advance. The technicians will be tested, licensed Attend administrative proceedings; participate in state administrative proceedings, where statute of regulation allows. Attend administrative proceedings, attend real estate closings, participate in state administrative proceedings and part icipate in alternative dispute resolution proceedings administrative proceedings, give legal advice, negotiate legal matters, attend real estate closings, participate in alternative dispute resolution 8 N (.M September 2015 © 201 5 American Bar Associa tion STATE AL AK AZ AR CA 2015 SURVEY OF UNLICENSED PRACTICE OF L AW COMMITTEES CHART III Jurisdiction is contempla ting expanding the limits of authorized nonlawyer service providers No. No Has your jurisdiction received complaints re: nonlawyer providers? (Describe) _ on Facebook., Crai~list, national section in local newspapers, court clerks reports people preparing & filing documents for other Yes; When we receive such complaints, we send them Yes; We have received complaints about non lawyers practicing. Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. No. No No. May disba rred or suspended lawyers engage in a law- related activity? If so, what a re the restrictions? No. Yes, Bar Yes; They must be supervised by a lawyer. Yes.; What is the source of your .iurisdiction's position on disba rred/suspended lawyer practice? Rule Rule Rule 31(c) and Rule 31(dX(18), Arizona Rules Rule; Statute Rule i According to the California Rules of Professional Conduct, rule 1·311 , a member may employ, associate professionally wijh , or aid a disbarred, suspended, resigned , or involuntarily inactive member D perform research, drafting or clerical activijies, including but not limijed to: (1) Legal work of a preparat01y nature, such as legal research, the assemblage of data and other necessal'f information, drafting of pleadings, briefs, and other similar documents; (2) Direct communication wijh the client or third parties regarding matters such as scheduling , billing , updates, confirmation of receipt or sending of correspondence and messages; or (3) Accompanying an active member in attending a deposijion or other discovery matter for the limijed purpose of providing clerical assistance to the active member v.tlo v.111 appear as the representative of the client. Has your jurisdiction received complaints regarding the actions of lawyers licensed in other jurisdictions (including lawyers licensed in fo reign jurisdictions?) (Explain na tu re of Yes; Lawyers not admitted pro hac vice. Typical lawyer issues. Yes; We receive complaints about the unauthorized practice by persons not licensed in California which sometimes involve a lawyer licensed in another jurisdiction. An out-of- state lawyer who appears pro hac vice in a California court also becomes subject to regulation bY the California State Bar N ..... September 2015 © 2015 American Bar Association ii STATE co I CT I DE I DC I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART III J urisdiction is contemplating expanding the limits of authorized nonlawyer service providers Yes; Supreme Court I I I I Has your j urisdiction received complaints re: nonlawyer providers? (Describe) Yes; Document preparers, websites as described above. No. Yes. I I I I Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. N o. No. No. I I May d isbarred or suspended lawyers engage in a law- related act ivity? If so, what are the restrict ions? Yes. ii Yes. Yes; They may act as a paralegal under supervision I but are more restricted in what they can do than a non-la\ er arale al. 1he D.C. Office of Bar Counsel and the Board on I Professional Responsibility I I W hat is the source of your ,jurisdiction' s posit ion on disbarred/suspended lawyer pract ice? Rule; Per Colo. RPC 5.5 (b) and (c) Case Law Case Law- Other; 1he Bar Counsel and the Board on Profess ion a I Per Colo. RPC 5.5 (b) and (c): (b) A lawyer shall not employ, associate professional y with, allow or aid a person the lawyer knows or reasonably should know is a disbarred, suspended, or on disabii ty inactive status to perform he following on behaW of the lawye(s client: (1 ) render legal consulta ion or adVice to the client; (2) appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer, (3) appear on behalf of a client at a deposition or other discovery matter; (4) nego iate or transact any matter for or on behalf of the client wi h third parties; (5) o herwise engage in ac ivi ies that constkute he practice of law; or (6) receive, disburse or otherwise handle client funds. (c) Subject to the limitation set b rth below in paragraph (d), a lawyer may employ, associate professionally with, a l ow or aid a lawyer who is disbarred, suspended (whose suspension is partially or fully served), or on disability inac ive status to perform research, drat ing or clerical acti vities, including but not limited to: (1) legal v.ork of a preparatory nature, such as legal research, the assemblage of data and other necessary information, drafting of pleadings, briefs, and o her similar documents; (2) direct communication wi h the client or third parties regarding matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages; and (3) accompanying an ac ive member in attending a deposi ion or other discovery matter for the limited purpose of providing assistance to the lawyer who wil appear as he representative of the client. (d) A lawyer shal not allow a person the lawyer knows or reasonably should know is disbarred, suspended, or on disability inactive status to have any professional contact with clients of the lawyer or of the lawyer's firm unless the lawyer. (1) prior to the commencement of the v.or1<, gives written notice to the client b r whom the v.ork will be performed that the disbarred or suspended lawyer, or the lawyer on disabii ty inactive status, may not practice law; and (2) retains written no ification for no less than tv.o years followi'lg completion of the v.ork. (e) Once no ice is given pursuant to C.R.C.P. 25128 or this Rule, then no addi ional no ice is required. I Has your j urisd iction received compla ints regarding the act ions of lawyers licensed in other j urisdict ions (including lawyers licensed in foreign j urisdictions?) (Explain nature of ng violations of the Colorado Rule ofProfessional Conduct, pursuant to our jurisdiction involving Ia er misconduct. Yes. Debt No. I N U'l 2 September 2015 © 2015 American Bar Association STATE FL I GA I HI m I IL I IN I lA I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART III J urisdiction is contemplating expanding the limits of authorized nonlawyer service providers Yes; Other Regulatory Board. Florida has a commission studing the future of the practice of law. Nonlawyer legal service providers is included in the study. No. No No. I I I I I Has your j urisdiction received complaints re: nonlawyer providers? (Describe) Yes; The complaints range from holding out as a lawyer to giving legal advice when assisting in filling out forms. Yes; Some from form shops and websites, but not very many. Yes. 'es; Document preparers, independent paralegals, legal "support," notario publico Yes. I I Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. No. No. No. No. No. I I May d isbarred or suspended lawyers engage in a law- related act ivity? If so, what are the restrict ions? Yes; Can work as a paralegal or law clerk under I the direction and supervision of a member of The Florida Bar. No direct client contact, cannot I handle trust funds or property; employing lawyer must provide quarterly reports of employment to The Florida Bar. Yes; Yes; from practicing law and from maintaining a presence or occupying a law office, not much activity is pennitted. B.C.R. 516. No. No. No. W hat is the source of your .iurisdiction's posit ion on disbarred/suspended lawyer pract ice? Rule, Case Law Rule. Rule, Case Law Rule Rule, Case Law I I Has your j urisd iction received compla ints regarding the act ions of lawyers licensed in other j urisdict ions (including lawyers licensed in foreign j urisdictions?) (Explain nature of Yes. Yes; Jurisdiction in state, practice without proper temporary admission and other violations of the professional conduct rules N/A Yes; Solicitation, ethical misconduct, UPL Yes; tiiiVn'O I N 0\ 3 September 2015 © 2015 American Bar Association STATE KS KY LA ME - MD - MA - Ml - MN I MS MO 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART III Jurisdiction is contemplating expanding the limits of authorized nonlawyer service providers No. No. Has your jurisdiction received complaints re: nonlawyer providers? (Describe) Yes; Document preparers, legal guidance, document managers I y ., !'· ::.,_. ~· I Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. No. No. No. May disbarred or suspended lawyers engage in a law- related activity? If so, what are the restrictions? Yes; A disbarred or suspended attorney may work in a law firm in a clerical capacity as long as he or she does not engage in the practice oflaw as the enumerated exceptions under 4 MRSA 807. No. What is the source of your ,jurisdiction' s position on disbarred/suspended lawyer practice? Advisory Opinion Rule Statute Rule, Statute, Case Law Rule, Statute N/A Has your jurisdiction received complaints regarding the actions of lawyers licensed in other jurisdictions (including lawyers licensed in foreign jurisdictions?) (Explain nature of Yes; Debt collection, legal advice, client solicitation Yes. 4 N ......J September 2015 © 2015 American Bar Association STATE NE NV NH NJ NM NY NC ND 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART III Jurisdiction is contemplating expanding the limits of authorized nonlawyer service providers No. No. consideration of possibly introducing legislation to No. Has your jurisdiction received complaints re: nonlawyer providers? (Describe) Yes. Yes; Unlawful practice by notarios publico, preparing pro se documents, is a perennial problem No. Yes; Don't know. Complaints go to the AG Yes; Specifically online document preparers Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. No. No. No. No. Yes; N.C. State Bar v. Lienguard, Inc., 2014 NCBC II, 1[1[ 70-73, 2014 WL 136541 8 No. May disbarred or suspended lawyers engage in a law- related activity? If so, what are the restrictions? . No. No. N/A pctntu:Kw ur JeKW i:I.SSJ.sU:Un m a fi rm other than one where slhe was employed at the time of the misconduct No; Depends whether acting as a paralegal for a What is the source of your ,jurisdiction' s position on disbarred/suspended lawyer practice? Advisory Opinion, Other: Disbarred/suspended lawyers are "non-lawyers" but still subiect to counsel Statute Rule, Court Rule I :20-20 Rule. Statute Rule N/A Has your jurisdiction received complaints regarding the actions of lawyers licensed in other jurisdictions (including lawyers licensed in foreign jurisdictions?) (Explain nature of Yes. Yes; Occasional- out-of- state lawyers overreaching Yes; UPL and abuse of pro hac vice N/A Yes; Foreign lawyers offering debt relief services Yes. 5 N 00 September 2015 © 2015 American Bar Association STAT E OH I OK I OR I PA I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART III J urisdict ion is contemplating expanding the limits of authorized nonlawyer service providers Yes No. I I Has your j urisdiction received complaints re: nonlawyer providers? (Describe) online document preparation, document preparation (trusts, wills, divorce documents) and \S Yes; 1his Office receives complaints concerning individuals preparing pleadings and providing legal advice in family matters, foreclosure proceedings, inunigration proceedings, criminal law (including appellate relief) and various other areas. ~s; Independent paralegal document preparers, in house counsel, entity I representation, professional crossover, foreclosures, bankruptcy, state agencies, I Yes; Not enough space. I Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. Y es;httu://www.suoremeco uri ohjo goy!Roanls/l!Pl/a dvisory opinionsii.JPLAdv Op 0& 03.pdf No. No. No. May d isbarred or suspended lawyers engage in a law- related act ivity? If so, what are the restrict ions? No. Yes; OBA Ethics Opinion No. 3 19 and see State ex rei. Oklahoma Bar Ass'n v. Samara, 725 P 2d 306 ( 1963) Yes; A disbarred or suspended lawyer can engage in the same activities as a nonlawyer. They are outlined in OSB Formal Ethics Opinions 2005-25 and 2005-24. Yes; Only in a law office under supervision of an attorney. Recently both the suspended attorney and his 1 I supervisi ng attorney were both permanently disbarred because the supervising attorney permitted the nded attorney to I W hat is the source of your ,jurisdiction' s posit ion on disbarred/suspended lawyer pract ice? Rule Rule, Case Law, Advisory Opinion Advisory Opinion Rule, Case Law I I Has your j urisd iction received compla ints regarding the act ions of lawyers licensed in other ju risdict ions (including lawyers licensed in foreign j urisdict ions?) (Explain nature of No. Yes; 1his office receives complaints concerning out- of-state attorneys preparing/filing pleadings in state court witholrt being admitted pro hac vice and complaints identical to those rolrtinely received by lawyers licensed in this Yes; In house counsel not signed up with OSB, debt negotiation, immigration consultant, and websites that offer legal advice to many states Yes; Too numerous to itemize. I N '-= I 6 September 2015 © 201 5 American Bar Associa tion STATE RI sc SD T N I TX I UT I VT I 2015 SURVEY OF UNLICENSED PRACTICE OF L AW COMMITTEES CHART III Jurisdiction is contempla ting expanding the limits of authorized nonlawyer service providers No. e are in very early s tages of looking at Washington State's LLLT program. Supreme Court makes rules for our members. I I Has your jurisdiction received complaints re: nonlawyer providers? (Describe) Yes; Many Tennessee consumers have complained of non- attorneys givi ng legal advices and preparing pleadings. Yes; Complaints regarding document preparation websites/companies have been received by the UPLC. Additionally, complaints regarding nonlawyer websites provid ing legal advi ce and idance are also received .. Yes; Paralegals advertsing I they can solve legal I problems more cheaply and faster. No. Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. No. Yes; In re Nolo Press/Folk Law, 991 S.W.2d 768, 769- 70 (Tex. 1999) No. No. I I May disba rred or suspended lawyers engage in a law- related activity? If so, what a re the restrictions? No. Yes; A disbarred lawyer must I be supervised by a licensed I attorney just as a legal assistant or paralegal must be. Yes. I No. What is the source of your ,jurisdiction ' s position on disba rred/suspended lawyer practice? Statute, Case Law Rule Case Law Rule Ru le Has your jurisdiction received complaints regarding the actions of lawyers licensed in other jurisdictions (including lawyers licensed in fo reign jurisdictions?) (Expla in na tu re of Yes; Some out of state attorneys have attempted to practice law in Tennessee without obtaining pro hac vice status, which Tennessee considers to be the unauthorized practice of Yes; Out of state attorneys engaging in the practice of Texas law, foreign licensed attorneys engaging in the practice of law in Texas (includ ing immigration law) Yes; Practicing in many different areas of law. No 7 (.M = September 2015 © 2015 American Bar Association iii STAT E VA WA wv WI WY 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART III J urisdiction is contemplating expanding the limits of authorized nonlawyer service providers N o. I Has your j urisdiction received complaints re: nonlawyer providers? (Describe) Y es; Advocacy, document preparation, offering legal advice, doing real estate work Yes. Numerous preparation, internet forms, I advertising by out of state Has your court or other state authority issued any binding or advisory opinion re: online legal services provided by nonlawyers? C ite, pis. N o. No. No. I May d isbarred or suspended lawyers engage in a law- related act ivity? If so, what are the restrict ions? Yes; May act as paralegal under proper supervision No. No. Restrictions on reapplying for admission and other UPL sanctions. W hat is the source of your ,jurisdiction' s posit ion on disbarred/suspended lawyer pract ice? Rule Rule, Statute, C ase Law Rule Rule See Va. Rule 5.5 (a) A lawyer, law firm or professional corporation shall not employ in any capacity a lawyer whose i cense has been suspended or revoked b r professional misconduc~ during such period of suspension or revocation, if the disciplined lawyer was associated with such lawyer, law firm, or professional corpora ion at any time on or after the date of the acts which resulted in suspension or revocation. (b) A lawyer, law fi'm or professional corpora ion employing a lawyer as a consultant, law der1<, or legal assistant when that lawye( s license is suspended or revoked b r professional misconduct shall not represent any client represented by the disciplined lawyer or by any lawyer wi h whom the disciplined lawyer prac iced on or after the date of the acts which resulted in suspension or revoca ion. Has your j urisd iction received compla ints regarding the act ions of lawyers licensed in other ju risdict ions (including lawyers licensed in foreign j urisdict ions?) (Explain nature of Yes; N ot properly admitted failure to comply with the Rules of Professi onal Conduct Yes; Cross-border practice Yes; Court appearances and filing documents in state I (.M ~ 8 September 2015 © 2015 American Bar Association STATE AK AZ AR CA co CT DE DC FL GA - HI ID I I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART IV What, if a ny, ent ity is responsible for enforcement against unaut horized out-of-state State Bar Counsel State Bar Counsel Attorney Regulation Counsel, enforcing the RPC against the out- of-state attorney. I I Is your jur isdict ion contemplat ing any cha nge in its UPL Regulations, enforcement act ivity, or au tho p u .aLo7\.l ... , .u ... uuv • Yes; The Arkansas Supreme has requested that the Arkansas Bar Association review current UPL regulations and make recommendations for amendments I '""''""~~~uvwu•~"'l"a'w I changes in UPL regulations or authority, but the area of enforcement .-. ""~ ... ,. "'u• ... "''"''-'~'"""'' ''-'6 a.uu.n . .o.u6 '-'·'"" "UPL Committee" the "Practice of Law Committee" and allowing LLLTs. Does your committee mainta in a UPL website? (Provide No. Yes; www.coloradosuoremeco l!.!1..£2m. I I Other; Chief Disciplinary Counsel No No. No. Other; D.C. Court of Appeals Yes; I Committee on Unauthorized No. Practice of Law I State Bar Counsel, State Bar Committee State Bar Counsel, County I Yes; www.isb.idaho.l!ov Prosecutor (.M N September 2015 © 2015 American Bar Association STATE lL IN lA KS KY LA ME MD -- MA -- MI -- MN MS MO MT 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART IV What, if any, e nti ty is Is your jurisdiction Does your responsible for contemplating any change committee I enforcement against in its UPL Regulations, maintain a UPL unauthorized out-of-state enforcement activity, or authorit ? I Supreme Court I No. Committee/Commission I Supreme Court I No I No Committee/Commission Yes; hnp://www iowacourJS gov/ I Yes; Rules & Procedure Revision • For Attornevs/Pmfessional Attorney Disciplinary Board Kentucky Supreme Court delegates authority to the Executive Director I ofthe KBA and Office of Bar No. Yes; htto://kvbar.ora/244 Counsel conducts investigation. Criminal status is enforced by I y ~ I No. No. No. I State Bar Counsel, State Bar I No. I No. Committee I State Bar Counsel I No. I No. Yes; Revising Commission rules to streamli ne and also recognize limited I I funding. Petition with rule change filed with MT Supreme Court and currently with 60 day comment period I I (.M (.M 2 September 2015 © 2015 American Bar Association STATE NV NH NJ NM NY NC NO OH OK OR PA Rl sc SD TN 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART IV What, if any, enti ty is responsible for enforcement against unauthorized out-of-state ;diction bar counsel Supreme Court Committee/Commission Attorney General Oklahoma Bar Association and Professional Responsibility State Bar Counsel U>mmmeetU>mnuss•on, Attorney State Bar Committee, Attorney General, County Prosecutor Is your jurisdiction contemplating any change in its UPL Regulations, enforcement activity, or au tho No. No. Yes; New Statute passed in 2011; Rule changes pending No. No. No. that would allow for an attorney and investigator that would specifically handle was recently authorized by the Oregon State Bar Board of Governors to No. No. No. I Does your committee maintain a UPL website? (Provide No. No. No. No. No. No. No. Yes; http://www.osbar.org/upl I ~ ,&::io. 3 September 2015 © 2015 American Bar Association STATE TX I UT I VT VA WA I wv I WI I WY I 2015 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES CHART IV What, if any, enti ty is responsible for enforcement against unauthorized out-of-state Supreme Court Committee/Commission State Bar Counsel N/A State Bar Counsel State Bar Committee, County Prosecutor Supreme Court Committee/Commission State Bar Committee I Is your jurisdiction contemplating any change in its UPL Regulations, enforcement activity, or au tho No. No. No. No. Yes (explain); There is a rule pending before the Washington Supreme Court that would permit the licensing of Legal Technicians to provide limited legal services Yes; Rules are in the process of being updated and amended. Yes. Yes; Complete revision of rule and statute I I I Does your committee maintain a UPL website? (Provide Yes; WWW.!JW(li£.Qr~ Yes; h!lll://www.l!l!!hbar.Qrl1i.u ~ services/unauthorized- nractice-of-law/ No. Yes; h!!Jl:/1\\ww. vsb.orgLsite/re ~latio!l(unauthoriz~- gm~i~~ !lll.il: Yes; ht!Jl://www. wisbar.orgLA Mffemolate.cfm?Section N/A I (.M Ut 4 Rule 1-311. Employment of Disbarred, Suspended,..., CA ST RPC Rule 1-311 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 West’s Annotated California Codes Rules of the State Bar of California (Refs & Annos) California Rules of Professional Conduct (Refs & Annos) Chapter 1. Professional Integrity in General Prof.Conduct, Rule 1-311 Rule 1-311. Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Member Currentness (A) For purposes of this rule: (1) “Employ” means to engage the services of another, including employees, agents, independent contractors and consultants, regardless of whether any compensation is paid; (2) “Involuntarily inactive member” means a member who is ineligible to practice law as a result of action taken pursuant to Business and Professions Code sections 6007, 6203(c), or California Rule of Court 9.31; and (3) “Resigned member” means a member who has resigned from the State Bar while disciplinary charges are pending. (B) A member shall not employ, associate professionally with, or aid a person the member knows or reasonably should know is a disbarred, suspended, resigned, or involuntarily inactive member to perform the following on behalf of the member’s client: (1) Render legal consultation or advice to the client; (2) Appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer; (3) Appear as a representative of the client at a deposition or other discovery matter; (4) Negotiate or transact any matter for or on behalf of the client with third parties; 36 Rule 1-311. Employment of Disbarred, Suspended,..., CA ST RPC Rule 1-311 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 (5) Receive, disburse or otherwise handle the client’s funds; or (6) Engage in activities which constitute the practice of law. (C) A member may employ, associate professionally with, or aid a disbarred, suspended, resigned, or involuntarily inactive member to perform research, drafting or clerical activities, including but not limited to: (1) Legal work of a preparatory nature, such as legal research, the assemblage of data and other necessary information, drafting of pleadings, briefs, and other similar documents; (2) Direct communication with the client or third parties regarding matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages; or (3) Accompanying an active member in attending a deposition or other discovery matter for the limited purpose of providing clerical assistance to the active member who will appear as the representative of the client. (D) Prior to or at the time of employing a person the member knows or reasonably should know is a disbarred, suspended, resigned, or involuntarily inactive member, the member shall serve upon the State Bar written notice of the employment, including a full description of such person’s current bar status. The written notice shall also list the activities prohibited in paragraph (B) and state that the disbarred, suspended, resigned, or involuntarily inactive member will not perform such activities. The member shall serve similar written notice upon each client on whose specific matter such person will work, prior to or at the time of employing such person to work on the client’s specific matter. The member shall obtain proof of service of the client’s written notice and shall retain such proof and a true and correct copy of the client’s written notice for two years following termination of the member’s employment with the client. (E) A member may, without client or State Bar notification, employ a disbarred, suspended, resigned, or involuntarily inactive member whose sole function is to perform office physical plant or equipment maintenance, courier or delivery services, catering, reception, typing or transcription, or other similar support activities. (F) Upon termination of the disbarred, suspended, resigned, or involuntarily inactive member, the member shall promptly serve upon the State Bar written notice of the termination. DISCUSSION For discussion of the activities that constitute the practice of law, see Farnham v. State Bar (1976) 17 Cal.3d 605 [131 Cal.Rptr. 611]; Bluestein v. State Bar (1974) 13 Cal.3d 162 [118 Cal.Rptr. 175]; Baron v. City of Los Angeles (1970) 2 Cal.3d 535 [86 Cal.Rptr. 673]; Crawford v. State Bar (1960) 54 Cal.2d 659 [7 Cal.Rptr. 746]; People v. 37 Rule 1-311. Employment of Disbarred, Suspended,..., CA ST RPC Rule 1-311 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Merchants Protective Corporation (1922) 189 Cal. 531, 535 [209 P. 363]; People v. Landlords Professional Services (1989) 215 Cal.App.3d 1599 [264 Cal.Rptr. 548]; and People v. Sipper (1943) 61 Cal.App.2d Supp. 844 [142 P.2d 960].)1 Paragraph (D) is not intended to prevent or discourage a member from fully discussing with the client the activities that will be performed by the disbarred, suspended, resigned, or involuntarily inactive member on the client’s matter. If a member’s client is an organization, then the written notice required by paragraph (D) shall be served upon the highest authorized officer, employee, or constituent overseeing the particular engagement. (See rule 3-600.) Nothing in rule 1-311 shall be deemed to limit or preclude any activity engaged in pursuant to rules 9.40, 9.41, 9.42, and 9.44 of the California Rules of Court, or any local rule of a federal district court concerning admission pro hac vice. Credits (Adopted July 11, 1996, eff. Aug. 1, 1996. As amended, eff. July 11, 2008.) Notes of Decisions (5) Footnotes 1 Supplied copy contains no opening parenthesis. Prof. Conduct, Rule 1-311, CA ST RPC Rule 1-311 California Rules of Court, California Rules of Professional Conduct, and California Code of Judicial Ethics are current with amendments received through October 1, 2015. California Supreme Court, California Courts of Appeal, Guidelines for the Commission of Judicial Appointments, Commission on Judicial Performance, and all other Rules of the State Bar of California are current with amendments received through October 1, 2015. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. 38 39 RULE 5.5. UNAUTHORIZED PRACTICE OF LAW; ... , COST RPC Rule 5.5 West's Colorado Revised Statutes Annotated West's Colorado Court Rules Annotated Colorado Rules of Professional Conduct (Appendix to Chapters 18 to 20) (Refs & Annos) Law Firms and Associations Rules of Prof.Cond., Rule 5.5 RULE 5.5. UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW Currentness (a) A lawyer shall not: (1) practice law in this jurisdiction without a license to practice law issued by the Colorado Supreme Court unless specifically authorized by C.R.C.P. 204 or C.R.C.P. 205 or federal or t ribal law; (2) practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction; (3) assist a person who is not authorized to practice law pursuant to subpart (a) of this Rule in the performance of any activity that constitutes the unauthorized practice of law; or (4) allow the name of a disbarred lawyer or a suspended lawyer who must petition for reinstatement to remain in the firm name. (b) A lawyer shall not employ, associate professionally with, allow or aid a person the lawyer knows or reasonably should know is a disbarred, suspended, or on disability inactive status to perform the following on behalf of the lawyer's client: (1) render legal consultation or advice to the client; (2) appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer; (3) appear on behalf of a client at a deposition or other discovery matter; (4) negotiate or transact any matter for or on behalf of the client with third parties; (5) otherwise engage in activities that constitute the practice of law; or (6) receive, disburse or otherwise handle client funds. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 40 RULE 5.5. UNAUTHORIZED PRACTICE OF LAW; ... , COST RPC Rule 5.5 (c) Subject to the limitation set forth below in paragraph (d), a lawyer may employ, associate professionally with, allow or aid a lawyer who is disbarred, suspended (whose suspension is partially or fully served), or on disability inactive status to perform research, drafting or clerical activities, including but not limited to: (1) legal work of a preparatory nature, such as legal research, the assemblage of data and other necessary information, drafting of pleadings, briefs, and other similar documents; (2) direct communication with the client or third parties regarding matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages; and (3) accompanying an active member in attending a deposition or other discovery matter for the limited purpose of providing assistance to the lawyer who will appear as the representative of the client. (d) A lawyer shall not allow a person the lawyer knows or reasonably should know is disbarred, suspended, or on disability inactive status to have any professional contact with clients of the lawyer or of the lawyer's firm unless the lawyer: (1) prior to the commencement of the work, gives written notice to the client for whom the work will be performed that the disbarred or suspended lawyer, or the lawyer on disability inactive status, may not practice law; and (2) retains written notification for no less than two years following completion of the work. (e) Once notice is given pursuant to C.R.C.P. 251.28 or this Rule, then no additional notice is required. Credits Repealed and readopted April 12, 2007, effective January 1, 2008. Amended effective April 6, 2016. Editors' Notes COMMENT 1] The definition of the practice oflaw is established by law and varies from one jurisdiction to another. In order to protect the public, persons not admitted to practice law in Colorado cannot hold themselves out as lawyers in Colorado or as authorized to practice law in Colorado. Rule 5.5(a)(l) recognizes that C.R.C.P. 204 and C.R .C.P. 205 permit lawyers to practice law in accordance with their terms in Colorado without a license from the Colorado Supreme Court. Lawyers may also be permitted to practice law within the physical boundaries of the State, without such a license, where they do so pursuant to Federal or tribal law. Such practice does not constitute a violation of the general proscription of Rule 5.5(a)(1). 2] Paragraph (a)(3) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge oflaw; for example, claims adjusters, employees of financial WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 2 41 RULE 5.5. UNAUTHORIZED PRACTICE OF LAW; ... , COST RPC Rule 5.5 or commercial institutions, social workers, accountants and persons employed in governmental agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se. 3] A lawyer may employ or contract with a disbarred, suspended lawyer or a lawyer on disability inactive status, to perform services that a law clerk, paralegal or other administrative staff may perform so long as the lawyer directly supervises the work. Lawyers who are suspended but whose entire suspension has been stayed may engage in the practice of law, and the portion of the Rule limiting what suspended lawyers may do does not apply. 4] The name of a disbarred lawyer or a suspended lawyer who must petition for reinstatement must be removed from the firm name. A lawyer will be assisting in the unauthorized practice of law if the lawyer fails to remove such name. 5] Disbarred, suspended lawyers or lawyers on disability inactive status may have contact with clients of the licensed lawyer so long as such lawyer and the licensed lawyer provide written notice to the client that the lawyer may not practice law. Written notice to the client shall include an advisement that the person may not give advice or engage in any other conduct considered the practice of law. Proof of service shall be maintained in the licensed lawyer's file for a minimum of two years. 6] Separate and apart from the disbarred, suspended or disabled lawyer's obligation not to practice law, the licensed lawyer who employs or hires such person has an obligation to directly supervise that individual. Notes of Decisions (85) Rules of Prof. Cond., Rule 5.5, COST RPC Rule 5.5 Current with amendments received through 7/1/16 End of Document (> 20 6 Thomson Reuters. No cam to or g na U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 3 In re Stoldt, 37 N.J. 364 (1962) 181 A.2d 364 37N.J . 364 Supreme Court of New Jersey. In the Matter of Sydney Vale STOLDT, an Attorney-at-Law. Argued Feb. 6, 1962. I Decided May 22, 1962. Proceeding on an applicat ion for reinstatement to pract ice of law and on an order to show cause why the respondent should not be disciplined. The Supreme Court held tha t the record warranted reinstatement. Attorney reinstated. Attorneys and Law Firms *365 **364 Henry J . Bendheim, Englewood, for the Bergen County Ethics committee. John E. Seiser, Hackensack, for respondent. Opinion PER CURIAM. 42 On March 20, 1961, petit ioner, a member of the bar of this Sta te, was suspended from practicing law for a period of six months. In re Stoldt, 34 N .J. 355, 169 A.2d 138 (1961). At the end of tha t period, he applied for reinstatement and, in accordance with customary procedure, the matter was referred to the Bergen County Ethics Committee for consideration and report. Hearings were held, following which the Committee recommended tha t the application be denied. The adverse report was made because of certain act ivity by Stoldt during the period of suspension which the Committee regarded as violat ive of R .R. 1:18 2(b). That rule provides: 'No attorney shall employ In his law offices and a ttorney who was disbarred or suspended after January 1, 1953, during the period of such suspension, nor shall any attorney permit or authorize any such disbarred or suspended a ttorney To perform any services for him in the practice of law, * * *. (Emphasis added) *366 At the hearings before the Committee, Stoldt volunteered the information that during his suspension he had made four or **365 five title searches for his son, Sydney Vale Stoldt, Jr. , who is also a member of the bar of this State, practicing in Bergen County. [1) The test imony respect ing these searches is clear. Stoldt acted solely as an abstractor; he set up the instruments as they appeared in the records and turned the search with the index work over to his son. He refrained from expressing any opinions upon questions of title. Such limited act ivity does not const itute pract icing law, and so cannot support a conclusion tha t either Stoldt or his son t respassed upon R.R. 1:18 2(b). The proof likewise reveals tha t immediately upon suspension, Stoldt withdrew from the office where he had been engaged in the practice of law with his son, and removed all evidence tha t he was an active member of the profession, or in any way associated with his son a t that address or elsewhere. Since the date of the order of this court, his son has occupied the office exclusively and Stoldt has never entered it. Moreover, he notified all his clients that he was no longer engaged in the practice of law. There is no proof tha t since March 20, 1961, he has acted in any way in the professional capacity of a member of the bar. Stoldt, his wife, and Stoldt, Jr., who is unmarried, reside together. It was at home tha t Stoldt, J r. asked his father to make the searches in question, and the completed work was delivered to the son there. We find nothing in the record to cast doubt upon the credibility of the test imony in this respect. Such contact between father and son does not constitute employment, ' in the law offices' of the son within the contempla tion of R .R. 1:18 2(b). Another complaint of unethical conduct was pending against Stoldt a t the t ime of his suspension from pract ice. It related to a transaction that took place between June and November 1958, involving the purchase of capital stock of a corporat ion which opera ted a tavern. A dispute arose *367 among the individuals participating in the acquisition, and the part ies on one side of the controversy made charges of improper activity on the part of Stoldt. Hearings were held thereon subsequent to the order of suspension, and a majority of the members of the WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 43 In re Stoldt, 37 N.J . 364 (1962) 181 A.2d 364 ------------------------------ Ethics Committee exonerated him. Two members filed a dissenting report. ln the course of the Committee report on the tavern acquisition matter, the majority noted that Stoldt, at the request of one of the parties, took her stock in his name as a temporary nominee or trustee for her. The trust relationship was not noted on the stock certificate, however. The stock was placed in Stoldt's name because the purchaser was endeavoring to determine whether she might have a liability for commissions to any broker other than the one who had consummated the particular transaction for her. Stoldt acceded to her request to avoid embarrassment for other stockholders, the understanding being that if any such liability appealed, the broker who was being paid commissions as the producing agent, would share them with the other broker. On the date of closing of the stock purchase, June 25, 1958, after the certificate had been put in his name, Stoldt notified the Borough of Moonachie and the Alcoholic Beverages Commission by letter of the change in ownership of the tavern corporation stock, listing himself as owner of the trust shares. Aside from the question whether under the particular circumstances such notice was required (see R .S. 33:1 34, N.J.S.A.), shortly thereafter, the commissions' contingency having been resolved Stoldt corrected the Borough and Alcoholic Beverage Commission records. End of Document The majority of the Ethics Committee found that the registration of the stock in Stoldt's name was done in good faith and not for the purpose of defrauding anyone. The minority considered the course pursued as unprofessional conduct. Our examination of the record satisfies us that the conclusion of the majority was justified and that disciplinary action is not warranted. It must be said, however, that the notification to the Borough and the Alcoholic *368 Beverage **366 Commission of Stoldt's ownership of the stock without explanation or reference to the trust character of his title was improper and represented a mistake of judgment fairly open to criticism. [21 On the entire record, we find no substantial basis for refusing Stoldt's application for reinstatement. Accordingly, such an order may be entered. For granting reinstatement: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7. Opposed: None. All Citations 37 N.J. 364, 181 A.2d 364 @ 2016 Thomson Reuters No cla1m to original U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 2 Judge Alex Kozinski & Eugene Volokh, "Lawsuit, Shmawsuit" (updated version of an article that was originally published at 103 Yale Law Journal 463 (1993)) Searching through the LEXIS legal opinions database reveals that "chutzpah" (sometimes also spelled "chutzpa," "hutzpah," or "hutzpa") has appeared in 231 reported court decisions. Curiously, all but eleven of them have been filed since 1980. There are two possible explanations for this. One is that during the last 21 years there has been a dramatic increase in the actual amount of chutzpah in the United States--or at least in the U.S. legal system. This explanation seems possible, but unlikely. The more likely explanation is that Yiddish is quickly supplanting Latin as the spice in American legal argot. As recently as 1970, a federal court not only felt the need to define "bagels"; it misdefined them, calling them "hard rolls shaped like doughnuts." All right-thinking people know good bagels are rather soft. (Day-old bagels are rather hard, but right-thinking people do not eat day-olds, even when they are only 10 cents each.) We’ve come a long way since then. The first reported use of "chutzpah" was in 1972, in an opinion of the Georgia Court of Appeals. We’re happy to say it was quite apt: breaking into a sheriff’s office to steal guns qualifies as chutzpah in our book. The four times "chutzpah" was used in published opinions in 1973, the courts didn’t even bother to give a definition. And, as we said, it’s been used over two hundred times since 1980. During the same period, the word "temerity" (a woefully inadequate substitute) was used only about two hundred sixty times, and "unmitigated gall" a mere thirteen. Other Yiddish words have had tougher sledding. Variations on "kibitz" have appeared in seventeen cases; consider especially, Zannone v. Polino, a 1956 New York case with a moral, where kibitzing at a card game turning into a knife fight and a lawsuit boys and girls, take note! "Maven" has appeared in fourteen cases, "klutz" in three. (See also Klopp v. Wackenhut Corp. (1992), which quoted one of the parties as contending "it had no duty to design the security station ‘for klutzes and total idiots’"). Also appearing in other cases, federal and state: "schlock" (1974 and again in 1993), "no-goodnik" (1991), "tzimmes" (1971), "rachmones" (1992), "a writ of rachmones does not lie" (1998), and, "Better the majority should worry about its umfarshtendenish of Rule 404(2), not Stephens’ chutzpah" (1991). "Schlemiel," also spelled "shlemiel," comes up six times, but one is in a quote from testimony, which doesn’t count, one is in the name of a book and three are descriptions of Woody Allen’s screen persona. The only bona fide use was, believe it or not, in another Georgia opinion, and not by the same judge, either. Georgia also brings us "appellant’s tsoriss" (1974), "shammes" (1975), and "gut gezacht" (1976). All four of these come from the same judge who first used "chutzpah." 44 The earliest reported case we’ve found that uses a Yiddish word (other than in a name or a literal quote) is In re Kladneve’s Estate, a 1929 case from New York, which describes Kladneve as "what is called in Yiddish a ‘schmorer.’" This is a puzzle. To the best of our knowledge, there’s no such Yiddish word, and "schnorrer"--the closest word that might fit--means "moocher," which doesn’t make a lot of sense in context, and also isn’t a very nice thing to say about the recently departed. We know of no other cases before the 1970’s except for three (from Utah, New York, and Wisconsin) involving kibitzers. "Noodge" appears only once--but in a U.S. Supreme Court case. Incidentally, that opinion was written by Justice Scalia, who’s also the only U.S. Supreme Court Justice to use "chutzpah" (the word, not the behavioral trait) in an opinion. "Schlimazel" is nowhere to be seen, even when spelled as "schlimazl," "shlimazel," "shlimazl," "schlemazl," "shlemazel," "schlemazel," or "shlemazl." "Schmooze" appears three times, the first time in--you guessed it--a Georgia case. Unfortunately, the judiciary of that great state stumbled that time, both misusing the word and misspelling it as "schmoose." We concede that Webster’s permits this spelling, but what do they know from Yiddish? There is, of course, one obvious question that must be on every reader’s mind at this juncture: what about "schmuck"? Regrettably, we were stymied in our schmuck search by the fact that many people are actually named Schmuck. This is an unfortunate circumstance for researchers, and even worse for the poor Schmucks themselves. The same happens to be true of "putz" and of "mensch." We’d much rather be named "mensch" than "schmuck," but, oddly enough, a search for NAME (SCHMUCK) found 87 cases and NAME (MENSCH) found only 63 cases. Perhaps this is because there are more schmucks than mensches in the world; but wouldn’t the real schmucks change their names so as to better fool people, and real mensches change theirs out of modesty? Besides, the true schmuck-mensch ratio is much higher than 87 to 63. Another little surprise: searching for "goy" revealed dozens of people named "Goy." How come? Why would a Jew be named Goy? And why would a goy call himself a goy? Consider also Gentile v. State Bar, a 1991 U.S. Supreme Court case. Go figure. In any case, returning to "schmuck," we can’t report on the degree to which schmuck has worked its way into legal English, which is too bad, because schmucks are even more common in courtrooms than schlemiels, schmoozing, and chutzpah. We can, however, mention that there’s a U.S. Supreme Court case named Schmuck v. United States; for what it’s worth, the petitioner was a used-car dealer. And there’s also People v. Arno, where the first letters of each sentence in a footnote spell out "schmuck" (apparently referring to the dissent). Harsh. Just as we can’t get much joy when a court uses "schmuck" to refer to a person named Schmuck, we also aren’t very excited when it uses "kosher" to describe 45 a deli or a piece of chicken. That "kosher" appears nearly 1300 times in LEXIS is therefore not particularly impressive. But it’s clear that "kosher" is used figuratively in quite a few cases, from United States v. Erwin’s insistence that the law "tell the felon point blank that weapons are not kosher" to Texas Pig Stands, Inc. v. Hard Rock Cafe International, Inc., which concludes that "though not entirely kosher, Hard Rock’s actions were not ... swinish." Pig Stands is somewhat atypical, though, as its reference to "kosher" is just one in a series of pork jokes. It’s likewise difficult to tell how many cases have used what logicians might call the "X, shmX" locution (as in the title of this very article)--there’s just no way to search for this in LEXIS or WESTLAW. We have, however, stumbled across it in a case in which a criminal defendant absconded before he was tried, and then, when he was eventually captured 16 years later, claimed that he was denied his speedy trial rights. "Given defendant’s chutzpah in attempting to profit in this case by his own wrongdoing," the court said, "we resist the temptation to let ‘speedy, schmeedy’ serve as our sole response to this contention." You can tell who won that case. Yiddish has also begun to appear in defamation cases. A 1972 New York case concluded that calling the food at a restaurant "ground-up schmutz" wasn’t actionable because it was only opinion. An Arizona court recently held the same about calling a building development a "cockamamie idea," as did an Illinois court about calling a business a "schlock operation." The Illinois trial court consulted as a reference Leo Rosten’s The Joys of Yiddish; it also reviewed the case law of New York, California, Illinois, and Florida (and why not Georgia?) to see if the word "schlock" had ever been the subject of a libel action. Like many other historical inquiries, etymological questions often have no clear, unambiguous answer. Is "kosher," for instance, even a Yiddishism at all? Was it borrowed from Hebrew via Yiddish, or directly from Hebrew? "Put the kibosh on" can be found in two cases, but while some authorities (including our ears) claim it’s Yiddish, the better view seems to be that it’s not. "Brouhaha" has been used in more than 100 cases, but it’s unclear whether it is in fact Yiddish. "Glitch" appears in over 400 cases, but it might have been borrowed either from Yiddish or German (a difficult question, since the languages are so similar). Moreover, perhaps because it’s been in general use in engineering lingo for decades, it may now be no more a Yiddishism than "robot" is a Czechism. Finally, "cockamamie" is unknown in European Yiddish, and has developed entirely in America--is it a Yiddishism, or an Americanism that happened to originate with American Jews? The spread of legal Yiddish is often inadvertent; for every case that 46 self-consciously cites Leo Rosten, there are ten where a word seems to be used just because it’s the right word. One of the authors of this very article has--entirely unwittingly--done this: his opinion in White v. Samsung Electronics America, Inc. contains the first use of the word "schtick" in a reported case. (As it happens, the law clerk who put it in was Irish Catholic.) And it was only by accident that the authors learned of the novelty of this feat; a friend wrote to say he was surprised to see the word in a published opinion. What’s so surprising? How else would you say it? Where all this will go from here is hard to say. "Chutzpah" is firmly ensconced, and, we’re happy to say, usually spelled right. Ch’s are always better than mere H’s, and the h at the end gives it just the right touch. "Kosher," "kibitz," "maven," and maybe "schtick" (five uses, all in the last decade) and "klutz" are looking good. The other "sch" words are iffier, but we think they’ve got a future. Others, like "noodge" and "meshugge," haven’t really made a dent, though they deserve better. We return then to the beginning, to chutzpah. The most famous definition of "chutzpah" is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan. But there’s another legal chutzpah story. A man goes to a lawyer and asks: "How much do you charge for legal advice?" "A thousand dollars for three questions." "Wow! Isn’t that kind of expensive?" "Yes, it is. What’s your third question?" Chutzpah. Judge Alex Kozinski sits on the U.S. Court of Appeals for the Ninth Circuit. Eugene Volokh sits on his tuchis in his office at the UCLA School of Law, where he is a professor. [Downloaded from http://www2.law.ucla.edu/volokh/yiddish.htm] 47 48 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 Massachusetts General Laws Annotated Rules of the Supreme Judicial Court (Refs & Annos) Chapter Four. Bar Discipline and Clients' Security Protection S.J .C. Rule 4:01 Rule 4 :01. Bar Discipline Currentness Section 1. J urisdiction. (1) Any lawyer or foreign legal consultant admitted to, or engaging in, the practice of Jaw in this Commonwealth shall be subject to this court's exclusive disciplinary jurisdiction and the provisions of this rule as amended from t ime to time. (2) Any Information, report , or o ther pleading filed in the Supreme Judicial Court pursuant to this rule shall be filed with the clerk of this court for Suffolk County. It shall be presented to the chief just ice, who shall designate a just ice to hear the matter. Section 2. Venue of Disciplinary Hearings. U nless the Board Chair or the Chair's designee specifies a different venue, a hearing on a petition for discipline shall take place at the offices of the Board. The Board Chair or the Chair's designee shall consider the convenience of the complainant, witnesses, the respondent and hearing committee in selecting a hearing location. Section 3. Grounds for Discipline. (1) Each act or omission by a lawyer, individually or in concert with any other person or persons, which violates any of the Massachusetts Rules of Professional Conduct (see Rule 3:07), shall constitute misconduct and shall be grounds for appropriate discipline even if the act or omission did not occur in the course of a lawyer client relat ionship or in connection with proceedings in a court. A violat ion of this Chapter 4 by a lawyer, including without limitation the failure without good cause (a) to comply with a subpoena validly issued under section 22 of this rule; (b) to respond to requests for information by the Bar Counsel or the Board made in the course of the processing of a complaint; (c) to comply with procedures of the Board consistent herewith for the processing of a pet ition for discipline or for the imposit ion of public reprimand or admonit ion (see section 4 of this rule); or (d) to comply with a condition of probation or diversion to an alternative educational, remedial, or rehabilitat ive program shall constitute misconduct and shall be grounds for appropriate discipline. (2) Failure to comply with (a) or (b) of subsection (1) or failure to file an answer as required by sect ion 8(3) of this rule or to appear at a hearing before a hearing committee, special hearing officer, or panel of the Board shall result in the entry of an order of administrative suspension upon the bar counsel's filing with this court of a petition for administrat ive suspension which sets forth the violation of this section and an affidavit of the bar counsel affirming that the lawyer was served with the request for information, the subpoena, the petition for discipline, or the notice of hearing in accordance with the provisions of sect ion 21 of this rule; that the lawyer was afforded a reasonable period of t ime for compliance WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 49 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 with the request for information or the subpoena, or to answer the petition, or with reasonable notice of the hearing and had failed to comply, to answer, or to appear; and that the request for information, subpoena, petition, or notice of hearing was accompanied by a statement advising the respondent lawyer that failure to comply with the request for information or subpoena, or to answer timely the petition, or to appear a t the hearing would result in administrative suspension without further hearing. (3) Any suspension under the provisions of subsection (2) above shall be effective forthwith upon entry of the suspension order and shall be subject to the provisions of section 17(4) of this rule. If not reinsta ted within thirty days after entry, the lawyer shall become subject to the other provisions of section 17 of this rule. As a condition precedent to reinstatement, such lawyer shall file with the Board and with the bar counsel an affidavit stating the extent to which he or she has complied with subsection (1) of this section and with the applicable provisions of section 17 of this rule. The lawyer shall also as a condition of reinstatement pay all expenses incurred by the Office of Bar Counsel and the Board in obtaining compliance with this section and in seeking suspension, including an administrat ive fee of twenty five dollars. Section 4. Types of Discipline. Discipline of lawyers may be (a) by disbarment, resignation pursuant to section 15 of this rule, or suspension by this court; (b) by public reprimand by the Board; or (c) by admonition by the bar counsel. Section 5. The Board of Bar Overseers. (1) This court shall appoint a Board of Bar Overseers (Board) to act, as provided in this Chapter Four, with respect to the conduct and discipline of lawyers and in such matters as may be referred to the Board by any court or by any judge or justice. T he Board shall consist of such number of members as the court may determine from time to time. The court, by order, shall request the submission of nominations to fill vacancies in such manner as it may determine. T he Massachusetts Bar Association and each county bar association (including, for the purposes of this section, the Boston Bar Association as the bar association for Suffolk County) may submit to this court in writing the names of two nominees for each vacancy in the Board. Any lawyer may submit in writing the names of nominees. The court may, but need not, make appointments to the Board from the nominees so submitted and, in making appointments, shall give appropriate consideration to a reasonable geographical dist ribution of appointees among disciplinary dist ricts. The court shall from time to time designate one member of the Board as Chair and another as Vice Chair. The Vice Chair shall perform the duties of the Chair in the Chair's absence or incapacity to act. (2) Appointments to the Board shall be for a term of four years. No member shall be appointed to more than two consecutive full terms but (a) a member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term, and (b) a former member shall again be eligible for appointment after a lapse of one or more years. A member whose term has expired shall continue in office until a successor is appointed and, in any event, shall continue to serve on any hearing or appeal panel to which he or she has been appointed until the panel completes its duties and may be recalled to serve on the panel in the event of a remand by the Board or the court. (3) The Board of Bar Overseers (a) may consider and investigate the conduct of any lawyer within this court's jurisdiction either on its own motion or upon complaint by any person; WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 2 50 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (b) shall appoint a chief Bar Counsel (the Bar Counsel) who shall, with the concurrence of the Board, hire such assistants to the Bar Counsel as may be required, all to serve at the pleasure of the court, the appointment of the Bar Counsel to be with the approval of the court; and may employ and compensate such other persons as may be required or appropriate in the performance of the Board's duties; (c) shall appoint one or more hearing committees, each committee to consist of three or more individuals, to perform such functions as may be assigned by the Board with reference to charges of misconduct; provided, however, that each hearing committee shall be chaired by a lawyer and no hearing committee shall consist of more than one nonlawyer; (d) may appoint a special hearing officer, who shall be a lawyer, to hear charges of misconduct when, in view of the anticipated length of the hearing or for other reasons, the Board determines that a speedy and just disposition would be better accomplished by such appointment than by referring the matter to a hearing committee or panel of the Board; (e) may, through its Chair, refer charges to an appropriate hearing committee, to a special hearing officer, or to a hearing panel of the Board; (f) shall review, and may revise, the findings of fact, conclusions oflaw, and recommendations of hearing committees, special hearing officers, or hearing panels. The Board in its discretion may refer an appeal taken pursuant to section 8(5) of this rule to a panel of its own members for its recommendation; (g) may issue a public reprimand to lawyers for misconduct, and in any case where disbarment or suspension of a lawyer is to be sought or recommended, or where the Bar Counsel or the Respondent lawyer appeals pursuant to section 8(6) of this rule, shall file an Information with this court; (h) with the approval of this court, may adopt and publish rules of procedure and other regulations not inconsistent with this rule; (i) may lease office space and make contracts and arrangements for the performance of administrative and similar services required or appropriate in the performance of the Board's duties; (j) may, but need not, consult with local bar associations in the several counties and their officers concerning any appointments which it is herein authorized to make; (k) may invest or direct the investment of the fees or any portion thereof, paid pursuant to Rule 4:03, section (1), and may cause funds to be deposited in any bank, banking institution, savings bank, or federally insured savings and loan association in this Commonwealth provided, however, that the Board shall have no obligation to cause these fees or any portion thereof to be invested; and (I) may perform other acts necessary or proper in the performance of the Board's duties. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 3 51 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (4) For any action requiring a vote of the Board, the Board shall act only with the concurrence of a majority of the Board who are present and voting, provided, however, that a quorum shall be present. A quorum shall consist of a majority of the Board, including members who are recused or abstain. Section 6. Hearing Committees. (1) Hearing committee members shall be appointed for a term of three years, and no member shall serve for more than two successive three year terms. A member whose term has expired shall continue in office until a successor is appointed, and, in any event, shall continue to serve on any committee to which he or she has been appointed until the committee completes its duties and may be recalled to serve on the committee in the event of a remand by the Board or the court. A former member may be again appointed after the expiration of one year from his or her last service. (2) The Board shall designate one member of each committee, who shall be a lawyer, to serve as chair. The committee shall act only with a concurrence of a majority of its members who are present, provided, however, that two members shall constitute a quorum. (3) Hearing committees (a) shall conduct hearings on formal charges of misconduct upon reference by the Board or its chair, and (b) may recommend that the matter be concluded by dismissal, admonition, public reprimand, suspension, or disbarment. (4) If a special hearing officer is appointed to hear disciplinary charges, that officer shall perform all the duties imposed upon a hearing committee by this rule or by the rules of the Board. Unless otherwise provided herein, the words "hearing committee used throughout this rule shall also mean a special hearing officer or hearing panel. Section 7. The Bar Counsel. The Bar Counsel (1) shall investigate all matters involving alleged misconduct by a lawyer coming to his or her attention from any source, except matters involving alleged misconduct by the Bar Counsel, assistant Bar Counsel, or any member of the Board, which shall be forwarded to the Board for investigation and disposition, provided that Bar Counsel need not entertain any allegation that Bar Counsel in his or her discretion determines to be frivolous, to fall outside the Board's jurisdiction, or to involve conduct that does not warrant further action; (2) shall dispose of all matters involving alleged misconduct by a lawyer in accordance with this rule and any rules and regulations issued by the Board for his or her guidance which may provide WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 4 52 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (a) that Bar Counsel need not pursue or may close a complaint whenever the matter complained of is frivolous, falls outside the jurisdiction of the Board, or involves allegations of misconduct that do not warrant further action, (b) for adjustment of complaints found by the Bar Counsel to be of a minor character by informal conference, admonition, or by diversion to an alternative educational, remedial, or rehabilitative program, and (c) for disposition by recommending to the Board the institution of formal proceedings in which the Bar Counsel seeks public discipline, but, except as to a complaint that is closed by Bar Counsel or that Bar Counsel determines need not be pursued, no disposition shall be recommended or undertaken by the Bar Counsel until the accused lawyer shall have been afforded opportunity to state his or her position with respect to the allegations against him or her; (3) shall prosecute all disciplinary proceedings before hearing committees, special hearing officers, the Board, and this court; (4) shall appear, with full rights to participate as a party, at hearings conducted with respect to petitions for reinstatement by suspended or disbarred lawyers, lawyers who have resigned, or lawyers on disability inactive status; (5) shall maintain permanent records of all matters presented to him or her and the disposition thereof, except that (a) the Board may provide by rule for the expunction of the records of a complaint against a lawyer which has been docketed solely on account of a report made by a financial institution that has dishonored an instrument presented against a lawyer's trust account when the instrument was dishonored solely due to the error of the financial institution, and (b) the Bar Counsel shall destroy and expunge the records of a complaint against a lawyer which has been closed and not subsequently reopened within six years of the date of closing unless a complaint has been filed in the intervening six year period. In the event a complaint is so filed or reopened, the records shall not be destroyed and expunged until the expiration of six years from the date on which all complaints have been closed and not reopened and all complaints have been dismissed and not reopened; ( 6) shall, with the concurrence of the Board, hire such assistants to the Bar Counsel as may be required; and (7) may delegate any duties or functions to a duly appointed assistant acting under his or her general supervision. Section 8. Procedure. (1) Investigation. In accordance with any rules and regulations of the Board, investigations (whether upon complaint or otherwise) shall be conducted by the Bar Counsel, except as otherwise provided by section 7(1) of this rule. Following completion of any investigation, or of a determination pursuant to section 7(1) that an investigation is not warranted, the Bar Counsel shall take further action, which may include, among others, WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 5 53 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (a) closing or declining to pursue a complaint and informing the complainant in writing of the reasons for not investigating a complaint or for closing the file and of the complainant's right to request review by a member of the Board; (b) closing a matter after adjustment, informal conference, or diversion to an alternative educational, remedial, or rehabilitative program; (c) recommending to the Board that (i) an admonition of the lawyer be administered; (ii) formal proceedings be instituted; or (iii) public discipline be imposed by agreement. Except in the case of a recommendation that public discipline be imposed by agreement, a designated Board member may approve, reject, or modify the recommended action, but the Bar Counsel may appeal to the Board Chair from any modification or rejection of a recommendation that an admonition be administered, or that formal proceedings be instituted. The Board Chair may approve or modify the recommended action. A recommendation that formal discipline be imposed by agreement shall be submitted directly to the full Board. (2) Admonition. (a) On appeal by Bar Counsel pursuant to subsection (1), the decision of the Board Chair to approve, modify, or reject the recommendation of an admonition shall be final. (b) If an admonition is approved by either the designated Board member or the Board Chair on appeal, the Bar Counsel shall make service of the admonition on the Respondent lawyer together with a summary of the basis for the admonition. Bar Counsel shall also provide written notice to the Respondent lawyer of the right to demand in writing within fourteen days of the date of service that the admonition be vacated and a hearing provided; the requirement that the Respondent lawyer submit with the demand a written statement of objections to the factual allegations and disciplinary violations set forth in the summary and all matters in mitigation; that failure of the Respondent lawyer to demand within fourteen days after service that the admonition be vacated and to submit a statement of objections constitutes consent to the admonition; and that failure to set forth matters in mitigation constitutes a waiver of the right to present evidence in mitigation at the hearing. (c) In the event of a demand that the admonition be vacated, the matter shall be disposed of in accordance with the procedure set forth in section 8(4) for expedited hearings. (d) Eight years after the administration of an admonition, it shall be vacated, and the complaint which gave rise to it dismissed, unless during such period another complaint has resulted in the imposition of discipline or is then pending. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 6 54 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (3) Formal Proceedings. (a) As to matters for which formal proceedings have been approved pursuant to section 8(1) of this rule, disciplinary proceedings shall be instituted by the Bar Counsel's filing a petition for discipline with the Board setting forth specific charges of alleged misconduct. A copy of the petition shall be served, together with a notice from the Board, setting a time for answer which shall not be less than twenty days after such service upon the Respondent lawyer and advising the Respondent lawyer that the failure to file an answer shall be grounds for administrative suspension pursuant to section 3(2) of this rule. The Respondent lawyer shall file his or her answer with the Board and serve a copy thereof on the Bar Counsel. In the event the Respondent lawyer fails to file a t imely answer to the petition, the charges shall be deemed admitted. Averments in the petition are admitted when not denied in the answer. (b) T he matter shall be assigned to a hearing committee, to a special hearing officer, or to the Board or a panel of the Board, and the Board shall give notice to the Bar Counsel, and to the Respondent lawyer's counsel, if any, and, if not, to the Respondent lawyer of the date and place set for hearing. The notice of hearing shall be served at least fifteen days in advance thereof. The notice shall advise the Respondent lawyer that the failure to appear for hearing will be grounds for administrative suspension pursuant to section 3(2) of this rule. (c) In the event the Respondent lawyer files an answer admitting the charges and does not request the opportunity to be heard in mitigation, the Bar Counsel and the Respondent lawyer may jointly recommend to the Board that the Respondent lawyer receive a public reprimand or a suspension. If the Board accepts a joint recommendation for a public reprimand, it shall issue such reprimand. If the Board accepts a joint recommendation for suspension, the Board shall file with the clerk of this court for Suffolk County an Information, together with the record of its proceedings. If the parties do not make such a joint recommendation, or if the Board rejects such recommendation, the matter shall be assigned to an appropriate hearing committee, to a special hearing officer, or to the Board or a panel of the Board, for hearing. A tie vote of the Board on such a recommendation shall constitute a rejection of the recommendation. (d) The hearing committee, special hearing officer, or panel of the Board shall file promptly with the Board a written report containing its findings of fact, conclusions of law, and recommendations, together with a record of the proceedings before it. ( 4) Expedited Hearing (a) When the Respondent lawyer has requested a hearing within fourteen days of service of an admonition in accordance with the requirements of section 8(2) of this rule, Bar Counsel shall file the admonition summary with the Board, along with the Respondent lawyer's demand for hearing and statement of objections and matters in mitigation, if any, and the matter shall be assigned to a special hearing officer. After hearing, the special hearing officer shall file with the Board a report containing his or her written findings of fact and conclusions of law, and shall recommend that: (1) the Respondent lawyer receive an admonition, (2) the charges be dismissed, or (3) the matter warrants a more substantial sanct ion than admonition and should be remanded for formal proceedings in accordance with section 8(3) of this rule. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 7 55 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (b) Respondent lawyer and Bar Counsel shall have the right to seek review by the Board of the decision by the special hearing officer in accordance with the procedure set forth in subsection (S)(a) of this rule, but any such review shall be on the briefs only and there shall be no oral argument. In the event the Board determines that the matter shall be remanded for formal proceedings, it shall assign the matter to a hearing committee or special hearing officer other than the one who heard the case initially. The Board's decision shall otherwise be final and there shall be no right by either Bar Counsel or the Respondent lawyer to demand after conclusion of an expedited hearing that an Information be filed. (5) Review by the Board (a) Upon receipt of a hearing committee's, special hearing officer's, or hearing panel's report after formal proceedings, if there is objection by the Respondent lawyer or by the Bar Counsel to the findings and recommendations, the Board shall set dates for submission of briefs and for any further hearing which the Board in its discretion deems necessary. The Board shall review, and may revise, the findings of fact, conclusions of law and recommendation of the hearing committee, special hearing officer, or hearing panel, paying due respect to the role of the hearing committee, the special hearing officer, or the panel as the sole judge of the credibility of the testimony presented at the hearing. (b) In the event that the Board determines that the proceedings should be dismissed, it shall so notify the Respondent lawyer. (c) In the event that the Board determines that the proceedings should be concluded by admonition or public reprimand, it shall so notify the Respondent lawyer. (6) Review by the Supreme Judicial Court. The Board shall file an Information whenever it shall determine that formal proceedings should be concluded by suspension or disbarment; or whenever either the Bar Counsel or the Respondent lawyer objects to having formal proceedings concluded by dismissal, admonition or by public reprimand, by filing a written demand with the Board for the filing of an Information within twenty days after the date of the notice of the Board's action, which time limit shall be jurisdictional. The subsidiary facts found by the Board and contained in its report filed with the Information shall be upheld if supported by substantial evidence, upon consideration of the record, or such portions as may be cited by the parties. (7) Disbarment by Consent. A lawyer accused of professional misconduct who does not wish to contest the charges may waive the foregoing provisions of this section and consent to the entry of a judgment of disbarment. Upon satisfying itself that the lawyer has given such consent freely and voluntarily, with full awareness of the implications of consenting to disbarment, and has acknowledged under oath that the material facts upon which the charges are based are true or can be proved by a preponderance of the evidence, the court may enter a judgment disbarring the lawyer from the practice of law. Section 9. Immunity. (1) Complaints submitted to the Board or to the bar counsel shall be confidential and absolutely privileged. The complainant shall be immune from civil liability based upon his or her complaint; provided, however, that such immunity WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 8 56 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 from suit shall apply only to communications to the Board or the bar counsel and shall not apply to public disclosure of information contained in or relating to the complaint. (2) The complainant and each witness giving sworn test imony or otherwise communicating with the Board or the bar counsel during the course of any investigation or proceedings under this rule shall be immune from civil liability based on any such testimony or communications; provided, however, that such immunity from suit shall apply only to testimony given or communications made to the Board or the bar counsel and shall not apply to public disclosure of information attested to or communicated during the course of the investigation or proceedings. (3) T he Board, members of the Board and its staff, members of hearing committees, special hearing officers, and the bar counsel and members of his or her staff shall be immune from liability for any conduct in the course of their official duties. Section 10. Refusal of Complainant to Proceed; Compromise; or Restitution. Abatement of an investigation into the conduct of a lawyer or other related proceedings shall not be required by the unwillingness or neglect of the complainant to cooperate in the investigation, or by any settlement, compromise or restitution. A lawyer shall not, as a condition of settlement, compromise or restitution, require the complainant to refrain from filing a complaint, to withdraw the complaint, or to fail to cooperate with the bar counsel. Section 11. M atters Involving Related P ending Civil, Criminal, or Administra tive Proceedings. T he investigation or prosecution of complaints involving material allegations which are substantially similar to the material allegations of pending criminal, civil, administrative, or bar disciplinary proceedings in this or another jurisdiction shall not be deferred unless the Board or a single member designated by the Chair, in its discretion, or the court, for good cause shown, shall authorize such deferment, as to which either the court or the Board may impose conditions. The acquittal of the Respondent lawyer on criminal charges, or a verdict, judgment, or ruling in the lawyer's favor in civil, administrative, or bar disciplinary proceedings shall not require abatement of a disciplinary investigation predicated upon the same or substantially similar material allegations. Section 12. Lawyers Convicted of Crimes. (1) The term "conviction shall include any guilty verdict or finding of guilt and any admission to or finding of sufficient facts and any plea of guilty or nolo contendere which has been accepted by the court , whether or not sentence has been imposed. (2) A conviction of a lawyer for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding inst ituted against that lawyer based upon the conviction. (3) The term "serious crime shall include (a) any felony, and (b) any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy, or solicitation of another, to commit a "serious crime. ( 4) Upon the filing with this court of a certificate establishing a lawyer's conviction of a serious crime, this court shall enter an order to show cause why the lawyer should not be immediately suspended from the practice of law, regardless of the WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 9 57 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 pendency of an appeal, pending final disposition of any disciplinary proceeding commenced upon such conviction. T he court or a justice, after affording the lawyer opportunity to be heard, may make such order of suspension or restriction as protection of the public may make appropriate. The court shall also refer the matter to the Board to take appropriate action, which may include investigation by the bar counsel or the institution of a formal proceeding. A disciplinary proceeding so instituted need not be brought to hearing until all appeals from the conviction are concluded. (5) Upon receipt of a notice of a conviction of a lawyer for a crime not constituting a serious crime, this court may refer the matter to the Board to take appropriate action, which may include investigation by the bar counsel or the institution of a formal proceeding. This court need make no reference with respect to convictions for minor offenses. ( 6) A lawyer suspended under the provisions of subsection ( 4) above will be reinstated immediately upon the filing of a certificate that the underlying conviction for a serious crime has been reversed or set aside, but the reinstatement need not terminate any formal proceedings then pending against the lawyer. (7) T he clerk of any court within the Commonwealth in which a lawyer is convicted shall transmit a certificate thereof to this court and to the Board within ten days of said conviction. (8) Within ten days of a lawyer's conviction of a crime, as defined in subsection 12(1) of this rule, the lawyer shall notify the bar counsel of the conviction. (9) Upon being advised that a lawyer has been convicted of (a) a crime within this Commonwealth and that no certificate has been filed under subsection (7) above, or (b) a crime in another jurisdiction, the bar counsel shall obtain a certificate of the conviction and transmit it or a copy to the court and to the Board. Section 12A. Lawyer Constituting Threat of Harm to Clients. Upon the filing with this court of a petition by the bar counsel alleging facts showing that a lawyer poses a threat of substantial harm to clients or prospective clients, or that the lawyer's whereabouts are unknown, this court shall enter an order to show cause why the lawyer should not be immediately suspended from the practice of law pending final disposition of any disciplinary proceeding commenced by the bar counsel. The court or a justice, after affording the lawyer opportunity to be heard, may make such order of suspension or restriction as protection of the public may make appropriate. In the interest of justice, the court, upon application of the lawyer, may terminate such suspension at any time after affording the bar counsel an opportunity to be heard. Section 13. Disability Inactive Status. (1) Involuntary Commitment, Adjudication of Incompetence, or Transfer to Disability Inactive Status. Where a lawyer has been judicially declared incompetent or committed to a mental hospital after a judicial hearing, or where a lawyer has been placed by court order under guardianship or conservatorship, or where a lawyer has been transferred to disability inactive status in another jurisdiction, the court, upon proper proof of the fact, shall enter an order transferring the lawyer to disability inactive status. A copy of such order shall be served, in the manner the court may direct, upon the lawyer, his or her guardian or conservator, and the director of the institution to which the lawyer is committed. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 10 58 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (2) Investigation of Incapacity. The bar counsel shall investigate information that a lawyer's physical or mental condition may adversely affect his or her ability to practice Jaw, except information involving the physical or mental condition of the bar counsel, assistant bar counsel, or any member of the Board, which shall be forwarded to the Board for investigation and disposition. In the event that the lawyer admits that he or she is incapacitated, the court may, upon petition of the bar counsel, enter an order placing the lawyer on disability inactive status, accepting the lawyer's resignation, or temporarily suspending the lawyer from the practice of law. With the approval of the Board chair or a member of the Board designated by the chair, the bar counsel may initiate formal proceedings pursuant to subsection ( 4) of this section to determine whether the lawyer shall be transferred to disability inactive status. (3) Inability to Assist in Defense. If during the course of a disciplinary investigation or proceeding under this rule the respondent lawyer alleges an inability to assist in the defense due to mental or physical incapacity, the court, upon petition by the bar counsel or the respondent lawyer, shall immediately transfer the respondent lawyer to disability inactive status until further order of the court. If the bar counsel contests the respondent lawyer's allegation, then a determination shall be made concerning the incapacity pursuant to subsection (4) of this section. (4) Proceedings to Determine Incapacity. (a) Proceedings to adjudicate contested allegations of disability or incapacity shall be held before a hearing committee, special hearing officer, or a panel of the Board and shall be commenced upon petition by the bar counsel. The proceedings shall be conducted in the same manner as disciplinary hearings and shall be open to the public as provided in section 20. (b) The court, Board, hearing committee, special hearing officer, or hearing panel may require the examination of the respondent lawyer by qualified medical experts designated by them. (c) The court or the Board may appoint a lawyer to represent the respondent lawyer if the lawyer is without adequate representation. (d) T he hearing committee, special hearing officer, or panel of the Board shall report promptly to the Board its findings and recommendations, together with a record of the proceedings before it. The lawyer and the bar counsel shall have the rights of appeal provided for in section 8 of this rule. The Board shall file an Information with the clerk of this court for Suffolk County together with its recommendation and the record of the proceedings before it. (e) If, after hearing and upon due consideration of the record including the recommendation of the Board as provided in subsection (6) of section 8 of this rule, the court concludes that the respondent is incapacitated from continuing to practice law, it shall enter an order transferring the respondent to disability inactive status until further order of the court. (f) Disciplinary proceedings shall not be stayed unless the court finds that the respondent lawyer is so incapacitated by reason of mental or physical infirmity that he or she is incapable of assisting in his or her defense as provided in subsection (3) of this section. If the court determines the respondent lawyer's claim of incapacity to defend to be invalid, the disciplinary investigation or proceedings shall resume, and the court shall immediately temporarily suspend WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 11 59 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 the respondent lawyer from the practice of law pending final disposition of the matter. The court may direct that the expense of the independent examinations be paid by the lawyer. (5) Public Notice of Transfer to Disability Inactive Status. The Board shall cause a notice of transfer to disability inactive status to be published in the same manner as a disciplinary sanction imposed under section 8 of this rule is published. (6) Reinstatement/rom Disability Inactive Status. (a) Reinstatements from disability inactive status shall be subject to the provisions of section 18 of this rule except as herein provided. (b) A lawyer shall be entitled to petition for transfer to active status from disability inactive status once a year or at such intervals as this court may direct in the order transferring the respondent to disability inactive status or any modifications thereof. (c) The Board, upon referral from the court, may direct an examination of the lawyer by qualified medical experts designated by the Board. (d) Where a lawyer placed on disability inactive status under subsection (1) of this section has been judicially declared to be competent or returned to active status by the other jurisdiction, this court, after hearing, may dispense with referring the matter to the Board pursuant to subsection (5) of section 18 for the taking of further evidence that his or her disability has been removed and may immediately direct the lawyer's reinstatement to active status upon such terms as are deemed proper and advisable. (e) A lawyer seeking reinstatement under this section shall have the burden of demonstrating that his or her physical or mental condition does not adversely affect the lawyer's ability to practice law and that he or she has the competency and learning in law required for admission to practice. (7) Waiver of Privilege. A lawyer who files for reinstatement pursuant to the provisions of subsection (6) of this section or who alleges incapacity to defend himself or herself in a disciplinary investigation or proceedings pursuant to the provisions of subsection (3) shall be required to disclose the name of each medical provider, hospital, or other institution by whom or in which the lawyer has been examined or treated since the time of transfer to disability inactive status or during the period of the alleged incapacity. The lawyer shall fu rnish to this court and to the bar counsel written consent to the release of information and records relating to the disability upon request by the court or Board, court or Board appointed medical experts, or the bar counsel. Section 14. Appointment of Commissioner to Protect Clients' Interests When Lawyer Disappears or Dies, or is Placed on Disability Inactive Status. (1) Whenever a lawyer is placed on disability inactive status, or disappears or dies, and no partner, executor, or other responsible party capable of conducting the lawyer's affairs is known to exist, this court, after giving the bar counsel an opportunity to be heard and upon proper proof of the fact, may appoint a lawyer or lawyers as commissioner to make WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 12 60 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 an inventory of the files of the inactive, disappearing, or deceased lawyer and to take appropriate action to protect the interests of clients of the inactive, disappearing, or deceased lawyer, as well as such lawyer's interest. (2) The commissioner so appointed shall not disclose any information contained in any files listed in such inventory without the consent of the client to whom such file relates except as necessary to carry out the order of this court to make such inventory. The commissioner shall be reimbursed for reasonable expenses and may be awarded fair compensation. The commissioner's expenses and fees shall be paid by the lawyer unless otherwise ordered by the court. Section 15. Resignations by Lawyers under Disciplinary Investigation. (1) A lawyer who is the subject of an investigation under this Chapter Four may submit a resignation by delivering to the Board an affidavit stating that he or she desires to resign, and that: (a) the resignation is freely and voluntarily rendered; the lawyer is not being subjected to coercion or duress and is fully aware of the implications of submitting the resignation; (b) the lawyer is aware that there is currently pending an investigation into allegations that he or she has been guilty of misconduct, the nature of which shall be specifically set forth; and (c) the lawyer acknowledges that the material facts, or specified material portions of them, upon which the complaint is predicated are true or can be proved by a preponderance of the evidence. (d) the lawyer waives the right to hearing as provided by this rule. (2) Upon receipt of the required affidavit, the Board shall file it, together with its recommendation thereon, with this court which may enter an order. (3) All proceedings under this section shall be public as provided in section 20 of this rule. (4) Any lawyer whose resignation under this section has been accepted must comply with the provisions of section 17 of this rule regarding notice. Section 16. Reciprocal Discipline. (1) Upon receipt of a certified copy of an order that a lawyer admitted to practice in this Commonwealth has been suspended or disbarred from the practice of law in another jurisdiction (including any federal court and any state or federal administrative body or tribunal) or has resigned during the pendency of a disciplinary investigation or proceeding, this court shall issue a notice directed to the respondent lawyer containing: (a) a copy of the order from the other jurisdiction; and (b) an order directing that the respondent lawyer inform the court within thirty days from service of the notice of any claim that the imposition of the identical or other discipline in this Commonwealth would be unwarranted WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 13 61 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 and the reasons therefor. The bar counsel shall cause this notice to be served on the respondent lawyer in accordance with this rule. (2) In the event that the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in the Commonwealth may (but need not) be deferred. (3) Upon the expiration of thirty days from service of the notice under subsection (1) above, the court, after hearing, may enter such order as the facts brought to its attention may justify. The judgment of suspension or disbarment shall be conclusive evidence of the misconduct unless the bar counsel or the respondent lawyer establishes, or the court concludes, that the procedure in the other jurisdiction did not provide reasonable notice or opportunity to be heard or there was significant infirmity of proof establishing the misconduct. The court may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth. (4) Upon receipt of a certified copy of an order that a lawyer admitted to practice in this Commonwealth has been subjected to public discipline other than suspension or disbarment in another jurisdiction (including any federal court and any state or federal administrative body or tribunal), the Board and the clerk of this court for Suffolk County shall file it and make it available to the public to the extent that the record of any other public disciplinary proceeding would be made available. (5) A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct or an admission in connection with a resignation in another jurisdiction may be treated as establishing the misconduct for purposes of a disciplinary proceeding in the Commonwealth. (6) A lawyer subject to public or private discipline in another jurisdiction (including any federal court and any state or federal administrative body or tribunal), or whose right to practice Jaw has otherwise been curtailed or limited in such other jurisdiction, shall provide certified copies of the order imposing such discipline or other disposition to the Board and to the bar counsel within ten days of the issuance of such order. (7) A lawyer admitted to practice in this Commonwealth who is denied admission to the bar of another jurisdiction (including any federal court and any state or federal administrative body or tribunal), for reasons other than failure to pass the bar examination, shall provide certified copies of any such decision, notice or order to the Board and the bar counsel within ten days of its issuance. Section 17. Action by Attorneys after Disbarment, Suspension, Resigna tion or Transfer to Disability Inactive Sta tus. (1) In every case where a lawyer has been disbarred, suspended, temporarily suspended, or placed on disability inactive status, or where a lawyer has resigned pursuant to the provisions of section 15 of this rule, the lawyer shall, within fourteen days of the date of entry of the disbarment, suspension, temporary suspension, transfer to disability inactive status, or resignation, take the following actions: WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 14 62 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (a) file a notice of withdrawal as of the effective date thereof with every court, agency, or tribunal before which a matter is pending, together with a copy of the notices sent pursuant to paragraphs (c) and (d) of this subsection, the client's or clients' place of residence, and the case caption and docket number of the client's or clients' proceedings; (b) resign as of the effective date thereof all appointments as guardian, executor, administrator, trustee, attorney in fact, or other fiduciary, attaching to the resignation a copy of the notices sent to the wards, heirs, or beneficiaries pursuant to paragraphs (c) and (d) of this subsection, the place of residence of the wards, heirs, or beneficiaries, and the case caption and docket number of the proceedings, if any; (c) provide notice to all clients and to all wards, heirs, and beneficiaries that the lawyer has resigned or that the lawyer has been disbarred, suspended, temporarily suspended, or transferred to disability inactive status; that he or she is disqualified from acting as a lawyer after the effective date thereof; and that, if not represented by co counsel, the client, ward, heir, or beneficiary should act promptly to substitute another lawyer or fiduciary or to seek legal advice elsewhere, calling attention to any urgency arising from the circumstances of the case; (d) provide notice to counsel for all parties (or, in the absence of counsel, the parties) in pending matters that the lawyer has resigned, been disbarred, suspended, or transferred to disability inactive status and, as a consequence, is disqualified from acting as a lawyer after the effective date thereof; (e) make available to all clients being represented in pending matters any papers or other property to which they are entitled, calling attention to any urgency for obtaining the papers or other property; (f) refund any part of any fees paid in advance that have not been earned; (g) close every IOL TA, client, trust or other fiduciary account and properly disburse or otherwise transfer all client and fiduciary funds in his or her possession, custody or control. (h) give such other notice of the court's action as the court may direct in the public interest. Unless otherwise ordered by the court, all notices required by this section shall be served by certified mail, return receipt requested, in a form approved by the Board. (2) Whenever the court deems it necessary, it may appoint a commissioner to take appropriate action in lieu of, or in addition to, the action directed in subsection (1) of this section. The appointment of the commissioner shall be at the expense of the lawyer unless otherwise ordered by the court. (3) Orders imposing temporary suspension shall be immediate and forthwith, and orders imposing disbarment or suspension or accepting the resignation of the lawyer or placing a lawyer on disability inactive status shall be effective thirty days after entry, unless otherwise ordered by the court. After entry of such order, the lawyer shall not accept any new retainer or engage as lawyer for another in any new case or matter of any nature. During the period between the entry date of the order and its effective date, however, the lawyer may wind up and complete, on behalf of any client, all matters which were pending on the entry date. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 15 63 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 ( 4) The Board shall promptly transmit a copy of the order of temporary suspension, suspension, disbarment, resignation, or transfer to disability inactive status to the clerk of each court in the Commonwealth, state or federal, in which it has reason to believe the disciplined lawyer has been engaged in practice. (5) Within twenty one days after the entry date of the disbarment, suspension, temporary suspension, resignation, or disability inactive status order, the lawyer shall file with the Office of the Bar Counsel an affidavit certifying that the lawyer has fully complied with the provisions of the order and with bar disciplinary rules. Appended to the affidavit of compliance shall be (a) a copy of each form of notice, the names and addresses of the clients, wards, heirs, beneficiaries, attorneys, courts and agencies to which notices were sent, and all return receipts or returned mail received up to the date of the affidavit. Supplemental affidavits shall be filed covering subsequent return receipts and returned mail. Such names and addresses of clients shall remain confidential unless otherwise requested in writing by the lawyer or ordered by the court. (b) a schedule showing the location, title and account number of every bank account designated as an IOL T A, client, trust or other fiduciary account and of every account in which the lawyer holds or held as of the entry date of the order any client, trust or fiduciary funds; (c) a schedule describing the lawyer's disposition of all client and fiduciary funds in the lawyer's possession, custody or control as of the entry date of the order or thereafter; (d) such proof of the proper distribution of such funds and the closing of such accounts as has been requested by the bar counsel, including copies of checks and other instruments; (e) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; (f) the residence or other street address where communications to the lawyer may thereafter be directed. The lawyer shall retain copies of all notices sent and shall maintain complete records of the steps taken to comply with the notice provisions of this rule. (6) Within twenty one days after the entry date of the disbarment, suspension, temporary suspension, resignation, or disability inactive status order, the lawyer shall file with the clerk of this court for Suffolk County: (a) a copy of the affidavit of compliance required by subsection 5, above. (b) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; (c) the residence or other street address where communications to the lawyer may thereafter be directed. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 16 64 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (7) Except as provided in section 18(3) of this rule, no lawyer who is disbarred or suspended, or who has resigned or been placed on disability inactive status under the provisions of this rule shall engage in legal or paralegal work, and no lawyer or law firm shall knowingly employ or otherwise engage, directly or indirectly, in any capacity, a person who is suspended or disbarred by any court or has resigned due to allegations of misconduct or who has been placed on disability inactive status. (8) Any lawyer who is disbarred, suspended for a definite or an indefinite period, or who has resigned and who is found by the court to have violated the provisions of this rule by engaging in legal or unauthorized paralegal work prior to reinstatement under this rule may not be reinstated until after the expiration of a specified term determined by the court after a finding that the lawyer has violated the provisions of this rule. A lawyer on disability inactive status who knowingly violates the provisions of this rule by engaging in legal or paralegal work shall be removed from disability inactive status and temporarily suspended pending the outcome of the disciplinary investigation and proceedings. Section 18. Reinstatement. (1) Eligibility for Reinstatement-Short-term suspensions. (a) A lawyer who has been suspended for six months or Jess pursuant to disciplinary proceedings shall be reinstated at the end of the period of suspension by filing with the court and serving upon the Bar Counsel an affidavit stating that the lawyer (i) has fully complied with the requirements of the suspension order, (ii) has paid any required fees and costs, and (iii) has repaid the Clients' Security Board any fu nds awarded on account of the lawyer's misconduct. (b) A lawyer who has been suspended for more than six months but not more than one year pursuant to disciplinary proceedings shall be reinstated at the end of the period of suspension by filing with the court and serving upon the Bar Counsel an affidavit stating that the lawyer (i) has fully complied with the requirements of the suspension order, (ii) has taken the Multi State Professional Responsibility Examination during the period of suspension and received a passing grade as established by the Board of Bar Examiners, (iii) has paid any required fees and costs, and (iv) has repaid the Clients' Security Board any funds awarded on account of the lawyer's misconduct. (c) Reinstatement under this subsection (1) will be effective automatically ten days after the filing of the affidavit unless the Bar Counsel, prior to the expiration of the ten day period, files a notice of objections with the court. In such instances, the court shall hold a hearing to determine if the filing of a petition for reinstatement and a reinstatement hearing as provided elsewhere in this section 18 shall be required. (d) The right to automatic reinstatement u nder this subsection (1) shall not apply to any lawyer who fails to file the required affidavit within six months after the original term of suspension has expired. In such a case the lawyer must file a petition for reinstatement under paragraph (2) of this section. (2) Eligibility for Reinstatement-Disbarment, Resignation, and Long-term Suspensions. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 17 65 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (a) Except as the court by order may direct, a lawyer who has been disbarred, or whose resignation has been allowed under section 15 of this rule, may not petition for reinstatement until three months prior to the expiration of at least eight years from the effective date of the order of disbarment or allowance of resignation. (b) Except as the court by order may direct, a lawyer who has been suspended for an indefinite period may not petition for reinstatement until the expiration of at least three months prior to five years from the effective date of the order of suspension. (c) Except as the court by order may direct, a lawyer who has been suspended for a specific period of more than one year may not petition for reinstatement until three months prior to the expiration of the period specified in the order of suspension. (3) Employment as Paralegal. At any time after the expiration of the period of suspension specified in an order of suspension, or after the expiration of four years in a case in which an indefinite suspension has been ordered, or after the expiration of seven years in a case in which disbarment has been ordered or a resignation has been allowed under section 15 of this rule, a lawyer may move for leave to engage in employment as a paralegal. When the term of suspension or disbarment or resignation has been extended pursuant to the provisions of section 17(8) of this rule, the lawyer may not petition to be employed as a paralegal until the expiration of the extended term. The court may allow such motion subject to whatever conditions it deems necessary to protect the public interest, the integrity and standing of the bar, and the administration of justice. (4) Petitions for Reinstatement. Petitions for reinstatement required under this section 18 and those required under section 13 of this rule shall be filed with the clerk of this court for Suffolk County and (a) shall state whether the petitioner has complied with all the terms and conditions of the order imposing suspension or disbarment, accepting a resignation, or placing the petitioner on disability inactive status, as the case may be; (b) shall state whether the petitioner has paid any costs assessed by the court under section 23 of this rule; (c) shall state the extent to which the petitioner has made restitution to, or otherwise made whole, all clients or others injured by the petitioner's misconduct; (d) shall state whether the petitioner has repaid the Clients' Security Board any funds awarded on account of the petitioner's misconduct; (e) shall state that the petitioner has taken the Multi State Professional Responsibility Examination after entry of the order of suspension, disbarment, or acceptance of resignation, and has received a passing grade as established by the Board of Bar Examiners; WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 18 66 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (f) shall state that the petitioner has posted with the Board any bond it has required under paragraph 6 of this section 18;and (g) shall state that the petitioner has filed with the Board and served upon the Bar Counsel copies of the petition and the completed questionnaire required by the Board under its rules. (5) Procedure on Petitions for Reinstatement. The clerk shall transmit a copy of the petition for reinstatement to the Board within three days after fili ng. Except with the written consent of the Board or the Bar Counsel, no hearing upon the merits of such a petition shall be held prior to the expiration of the full term of suspension, indefinite suspension, disbarment, or resignation pursuant to section 15 of this rule and in no event earlier than sixty days after transmittal of the petition to the Board or such further time as the court may allow to permit reasonable consideration of the petition by the Board. Upon receipt of such a petition the Board may hear the petition itself or may refer it to an appropriate hearing committee, to a special hearing officer, or to a panel of the Board designated by the Chair. On any petition the Board, the hearing committee, special hearing officer, or panel shall promptly hear the petitioner who shall have the burden of demonstrating that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest. On any petition referred, the hearing committee, special hearing officer, or panel shall transmit to the Board its findings and recommendations, together with any record . T he Board shall file the Board's recommendations and fi ndings with the court, together with any record. The subsidiary facts found by the Board shall be upheld if supported by substantial evidence, upon consideration of the record, or such portions as may be cited by the parties. (6) Costs and Expenses. The court in its discretion may direct that the petitioning lawyer pay all necessary expenses incurred in connection with a petition for reinstatement, and the Board may require the posting of a reasonable bond to cover such expenses before acting on any petition assigned for hearing under this section 18. (7) Waiver of Hearing. The court may, on motion of the Bar Counsel, assented to by the Board and the petitioner, waive hearing u nder this section and allow the petition for reinstatement. (8) Further Petitions for Reinstatement. Except as the court by order may direct, no lawyer shall be permitted to reapply for reinstatement or readmission within one year following the final disposition of an adverse judgment upon a petition for reinstatement or readmission. Publisher s note: See Transitional Order in Aid of Construction of the Changes to Rule 4:01, § 18 and to Rules of Board of Overseers Regarding Reinstatement following Rule 4:01. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 19 67 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 Section 19. Expenses. The salary of the bar counsel, the bar counsel's expenses, the expenses of the Board, hearing committees, and special hearing officers, and other expenses incurred in the administration of this rule, may be paid by the Board out of the funds collected under the provisions of Rule 4:03, or, where the court deems that appropriate, from state funds as the court may order. The Board shall annually obtain an independent audit by a certified public accountant of the funds entrusted to it and their disposition, and shall file a copy of such audit with this court . Section 20. Confidentiality and Public Proceedings. (1) Except as the court shall otherwise order or as otherwise provided in this rule, the Board and the bar counsel shall keep confidential all information involving allegations of misconduct by a lawyer and all information that a lawyer's physical or mental condition may adversely affect his or her ability to practice law until the occurrence of one of the following events: (a) Submission of a resignation pursuant to section 15 of this rule; (b) Submission of a recommendation that formal discipline be imposed by agreement; (c) Service upon the respondent lawyer of a petition for discipline instituting formal charges against the lawyer or of a petition seeking to place the lawyer on disability inactive status. This section shall not prevent the members of the Board or the bar counsel from disclosing such information to this court or as they deem necessary to carry out their duties under this rule. (2) Notwithstanding subsection (1) of this section, the bar counsel or the Board may disclose the pendency, subject matter, and status of an investigation if: (a) the respondent lawyer has formally waived confidentiality or made the matter public; (b) the investigation is predicated upon a conviction of the respondent lawyer for a serious crime as defined in section 12 herein; (c) the investigation is based upon allegations that have become generally known to the public; or (d) there is a need to notify another person or organization in order to protect the public, the administration of justice, or the legal profession. (3) Upon the submission of an affidavit of resignation pursuant to section 15 of this rule or upon the submission of a stipulation between the bar counsel and the respondent lawyer which recommends public discipline or after the service upon the respondent lawyer of a petition for discipline instituting formal disciplinary charges or of a petition seeking to place the lawyer on disability inactive status, the proceedings are open to the public except for: WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 20 68 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 (a) deliberations of the hearing committee, the special hearing officer, the hearing panel, the appeal panel, the Board, or this court; (b) information with respect to which the Board has issued a protective order under subsection (4) hereof; (c) information with respect to which this court has issued a protective order on appeal from a Board decision denying such order under subsection (4) hereof; or (d) further proceedings following the recommendation by a hearing committee, a special hearing officer, a hearing panel, or an appeal panel, or following an order of the Board or this court, that an admonition be imposed or that a petition for discipline be dismissed. In such event, the record shall be sealed and the proceedings shall be closed until and unless the Board or this court orders otherwise. (4) In order to protect the interests of a complainant, witness, third party, or respondent lawyer, the Board may, upon application of the bar counsel or any affected person and for good cause shown, issue a protective order prohibiting the public disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order, including requiring that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application. If bar discipline or other professional discipline has been imposed on the respondent lawyer on a prior occasion, in this Commonwealth or elsewhere, the fact that the discipline imposed is or has been confidential shall not constitute good cause for the issuance of a protective order. The bar counsel or any affected person may appeal from an order granting or denying an application for a protective order by filing a notice of appeal with the clerk of this court for Suffolk County within seven days after the date of the notice of the Board's action, which time limit shall be jurisdictional. The pendency of such an appeal shall not be grounds to stay proceedings before a hearing committee, a special hearing officer, or any panel of the Board. (5) The provisions of this section shall not be construed to prohibit the Board from notifying a complainant concerning the Board's disposition of the complaint and the reasons therefor, or to deny access to relevant information to the Clients' Security Board, or to authorized agencies investigating the qualifications of judicial candidates, or to other jurisdictions investigating qualifications for admission to practice or considering reciprocal disciplinary action, or to law enforcement agencies investigating qualifications for government employment where discipline under this Chapter Four has been imposed, or, except as the court may direct, where the proceedings are pending and the Board in its discretion believes disclosure is warranted. In addition, the clerk of this court for Suffolk County shall transmit notice of all public discipline imposed by this court to the National Discipline Data Bank maintained by the American Bar Association. (6) When an investigation by the bar counsel or the Board concerns allegations of a serious crime as defined in section 12 herein, or disciplinary charges in another jurisdiction, the bar counsel or the Board may disclose information not otherwise public under this rule to the appropriate agency responsible for criminal or disciplinary enforcement and exchange such information with such agency during the course of its investigation of the same lawyer. When requested by an appropriate disciplinary agency investigating disciplinary charges in another jurisdiction, the bar counsel or the Board may also disclose the existence of any prior discipline. Section 21. Service. Any notice or pleading required to be served under this Chapter Four may be served upon the respondent lawyer in hand or by addressing it by certified, registered or first class mail to the address furnished in the WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 21 69 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 last registration statement filed by the respondent lawyer in accordance with R ule 4:02. Service by mail is complete upon mailing. Section 22. Subpoena Power. (1) Upon request by the bar counsel or a respondent lawyer for testimony or the production of evidence at a hearing, or upon request by the bar counsel for testimony or the production of evidence at any stage of an investigation, witnesses may be summoned by subpoenas issued at the direction of a Board member, the chair of a hearing committee, or a special hearing officer. Witnesses shall be examined under oath or affirmation. Testimony may be taken by a hearing committee, a special hearing officer, or a hearing panel outside the Commonwealth if the ends of justice so require. Where appropriate, testimony may be taken within or without the Commonwealth by deposition or by Commission. So far as practicable a stenographic, electronic, or videotape record shall be made and preserved for a reasonable time. (2) Whenever a subpoena is sought in this state pursuant to the law of another jurisdiction for use in lawyer discipline or disability proceedings, and where the issuance of a subpoena has been duly approved under the law of the other jurisdiction, a member of the Board may issue a subpoena as provided in this section to compel the attendance of witnesses and production of documents. Section 23. Costs. T he court, in its discretion, may direct that a respondent lawyer pay the costs incurred in connection with the processing of a disciplinary proceeding and information, as well as the costs incurred by the bar counsel and the Board in attempting to gain information from the respondent lawyer in connection with the processing of a complaint against said lawyer. Section 24. Restitution. The court or the Board, in its discretion, may order a respondent lawyer to make restitution to those persons financially injured by his or her conduct and to reimburse the Clients' Security Fund for any payments made on account of misappropriation. Adopted June 3, 1974, effective September 1, 1974. Amended September 17, 1975, effective January 1, 1976; amended effective April 20, 1976; amended July 28, 1976, effective September 1, 1976; amended effective October 11 , 1977; amended August 10, 1978, effective September 1, 1978; December 22, 1978, effective January 1, 1979; amended effective April 12, 1979; amended May 15, 1979, effective July 1, 1979; June 26, 1980, effective January 1, 1981; July 29, 1980, effective September 1, 1980; April 13, 1982, effective April30, 1982; August 4, 1982, effective August 30, 1982; January 2, 1985, effective March 1, 1985; April!, 1986, effective May 1, 1986; March 29, 1988, effective July 1, 1988; amended effective September 3, 1991; January 6, 1993; July 1, 1993; amended December 3, 1993, effective December 6, 1993; amended effective July 1, 1997; amended June 9, 1997, effective January 1, 1998; amended effective December 2, 1997; amended July 28, 1999, effective January 1, 2000; amended effective October 27, 1999; amended December 15, 1999, effective January 3, 2000; November 2, 2000, effective January 2, 2001; November 29, 2001 , effective January 1, 2002; November 5, 2002, effective December 2, 2002; April 9, 2009, effective September 1, 2009. ORDER ESTABLISHING A MODIFIED PROCEDURE FOR APPEAlS IN BAR DISCIPLINE CASES To expedite the resolution of bar discipline appeals in this court, while ensuring that the rights of all litigants involved in such cases are protected, the Supreme Judicial Court has approved a pilot program as follows. There shall be a modified procedure for appeals from decisions of the court's single justices in bar discipline cases. All bar discipline cases entered in the Supreme Judicial Court for Suffolk County after April 1, 2009 shall be subject to this order, and to the extent that WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 22 70 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 its provisions are inconsistent with the Massachusetts Rules of Appellate Procedure, this standing order shall govern. This following pilot program will be conducted for a period of two years, or until such other time as the court orders: (a) A party aggrieved by a final order or judgment of the single justice may appeal to the full court for review of the order or judgment. A notice of appeal must be filed with the clerk of the Supreme Judicial Court for Suffolk County within ten days of entry of the final order or judgment for which review is sought. An appeal shall not stay any order or judgment of suspension or disbarment unless the single justice or this court so orders. (b) The appeal shall initially be presented to the full court on the record that was before the single justice, together with a preliminary memorandum from the appellant and, if requested, from the appellee. The appellant shall be responsible for preparing and filing a record appendix containing copies of all the relevant papers from the single justice proceeding, including but not limited to the hearing committee report, appeal panel report, if any, board of bar overseers memorandum, the order or judgment of the single justice, and any memorandum of decision of the single justice. The appellant's preliminary memorandum, which shall not exceed twenty pages, double spaced, shall set forth the relevant background and summarize the appellant's arguments on appeal, with citations to applicable authority. It is incumbent on the appellant to demonstrate in this memorandum that there has been an error of law or abuse of discretion by the single justice; that the decision is not supported by substantial evidence; that the sanction is markedly disparate from the sanctions imposed in other cases involving similar circumstances; or that for other reasons the decision will result in a substantial injustice. Nine copies of the record appendix and preliminary memorandum shall be filed with the clerk of the Supreme Judicial Court for the Commonwealth within thirty days after the appeal has been docketed in the full court; one copy of the record appendix and memorandum shall be served on each other party. In the case of multiple appellants or cross appellants, each appellant shall be permitted to file a preliminary memorandum within this time frame, but in such a case, the appellants shall submit, and share the cost of, a single record appendix. If requested by the court, the appellee may file a responsive memorandum, not to exceed twenty pages, double spaced, within twenty days of the court's request. Extensions of time for filing memoranda will rarely be granted and should not be anticipated. (c) Based on its review of the parties' memoranda and the record appendix, the full court may affirm, reverse, or modify the order or judgment of the single justice without oral argument; alternatively, if any three Justices so vote, the court may direct the appeal to proceed in the regular course, in which case the parties will be permitted to file full briefs conformably with the Rules of Appellate Procedure and the case will be scheduled for oral argument. (d) The Rules of Appellate Procedure shall apply to appeals covered by this standing order to the extent they are not inconsistent with this order. (e) The clerk of this court for Suffolk County shall provide a copy of this standing order to the respondent attorney or his or her legal representative in each bar discipline case at the time the case is commenced in the county court, and shall remind the parties of their obligations under the order at the time she notifies them that the record has been assembled for appeal. Credits Adopted effective April !, 2009. Extended until April! , 2013. Extended until April!, 2015. Notes of Decisions (42) WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 23 71 Rule 4:01. Bar Discipline, MARS CT Rule 4:01 S.J.C. Rule 4:01, MA R S Cf Rule 4:01 Current with amendments received through July 1, 2016 End of Document (> 20 6 Thomson Reuters. No cam to or g na U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 24 72 NASSAU CouNTY BAR AssociATION Code Provisions: Facts Presented : lwl!!!o::: long Island. Ntw York Ethics Opinions ASSAU COU":\'TY BAR ASSOCIATIO!\ .! •DflTIEE O:Y PROFESSIO:YAI EIHJCS Archive of Ethics Opinions _ Opinion No.: 1995-15 • priety of employing a suspended attorney to draft pleadings, tracts, trust agreements and wills, and to perform legal It arch as a "litigation analyst," and duty to report employing rney and/or suspended attorney to appropriate authorities lilether 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. Canon 1 EC 1-8 DR l- 102(A) DR l - 103(A) DR 3-IOI(A)-(E) 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: [Tihe respondent is commanded to desist and refrain (I) 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." 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. 9215 (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 "nonlegal" 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 1103 (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 73 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 1102 [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 1102 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 1102. 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 3101(A)(1), which provides that a lawyer "shall not aid a nonlawyer 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 1102(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 1102 (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 1102. However, if he is, the question under DR 1103 (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 1102 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 74 attorney's capacity as a member of a bona fide lawyer assistance program, the inquiring attorney has a duty under DR 1103(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 1103 (A) (1) A "nonlawyer" is beyond the reach of DR 1103(A). See Nassau Ethics Op. 9021 (lawyer generally has no duty under Code to report a nonlawyer's illegal or unethical conduct) . However, a suspended attorney is not a "nonlawyer" for reporting purposes. Nor is a suspended attorney a disbarred lawyer over whom the disciplinary authorities have no jurisdiction. See Nassau Ethics Op. 9216 (DR 1103(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 1103 (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 1103 (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 3101(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 3101(B), the suspended attorney is also violating DR 1102 (A) (1) , which provides that a lawyer shall not " [vliolate a Disciplinary Rule." In addition, the suspended attorney would appear to be violating DR 1102(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 1103(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 1102 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 1103 (A) (1) to report the suspended attorney to the appropriate authorities. This opinion is consistent with Nassau Ethics Op. 9341 (attorney must report fraud by bankruptcy attorney if information is not protected as a confidence or secret). 75 However, the Committee notes that DR 1103(A) was significantly amended in 1990. Before 1990, DR 1103(A) required lawyers to report unprivileged knowledge of any violation of a disciplinary rule. Since 1990, DR 1103 (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 1103 (A) , such as Nassau Ethics Op. 909, 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] Archive of Ethics Opinions 76 77 New York Cou"!IY Lawyers ' Association Opinion No. 666 In answering questions this Committee acts by virtue of the following provision of the By- laws of the Association, Artic le 54, Section 3 ; "This Committee shall have power, when consulted, to advise inquirers respect i ng questions of proper professional conduct , reporting its action to the Board of Directors from t ime to time . " It is understood that this Committee acts on specif ic questions subm itted ex parte and in its an s wers bases its opinion on only such facts as are set forth in the question . TOPICS : DIGEST: CODE: QUESTION NO. 666 (1) DUTIES AND FUNCTIONS WHICH MAY BE UNDERTAKEN BY A LAW CLERK OR OTHER I,EGAL ASSISTANT. (2) EMPLOYMENT OF A DISBARRED LAWYER. (1) A LA~~ER MAY NOT ASSIGN A LEGAL ASS ISTANT TO PERFORM ANY SERVICES WHICH MAY ONLY BE PERFORMED BY A LAWYER OR WHICH INVOLVE THE EXERCISE OF PROFESSIONAL LEGAL JUDGMENT. ( 2) A LA~"'YER MAY NOT EMPLOY, IN ANY CAPACITY RELATED TO THE PRACTICE OF LAW, A DISBARRED OR SUSPENDED LAWYER OR A LAWYER WHO RESIGNED F'ROM THE BAR WHILE UNDER INVESTIGATION OR IN THE FACE OF DISCIPLINARY CHARGES . Canons 1 and 9; DR 3-lO l(A} ; EC 3-6. (1) · May a lawyer permit or assign his or her law c lerk, acting alone, to conduct a pre-trial deposition on oral examination? (2) May a lawyer permit or assign his or her law clerk, acting alone , to attend a rea l estate closing? (3) May a lawyer employ a disbarred lawyer as a law cle rk to conduct pre- trial depositions and attend real estate c losings? ANSWER TO QUESTION NO. 666 The question comes to this Committee in the follow- ing context: The i nquiring law~er wishes to employ a dis- barred lawyer as a law clerk. That individual ' s functions would include the conduct of pre-trial depositions and the attendance at real estate closings , both on the inquiring l awyer's behalf. 78 Ne'rv York Coun ty L(lwyers' Association Opinion No. 666 In the opinion of the Committee , it would be ethically improper for a lawyer to permit a law clerk or legal assistant (as defined below) to conduct a pre-trial deposition or to perform any services which involve the exercise of professional legal judgment or which m~y only be performed by a member of the Bar. In the opinion of the Committee it would be ethically proper to permit a l aw clerk to perform other task s in a law office provided that they are performed under the direction of the employing lawyer o r do not require the exercise of professional judgment. Among these is the at tendance at a real estate closing if such In the opinion of the Committee it would be ethica lly improper fo r a lawyer to employ, in any capacity related to the practice of l aw, an individual who has been disbarred, or who is suspended from the practice of law, or who has resigned from the Bar in the face of pending charges. I . LEGAL ASSISTANTS. The use of specially-trained aides , from scrivener s and emanuenses to para-legals and legal secretaries , in pro- viding assistance to lawyers in carrying out their duties, has been part of the profession for virtually its entire history. The proper role and function of such assistants, whether law clerks , para-legals or other legal or lay assistants 1 I has been the subject of ethical opinions for over a half- century, i ncluding comprehensive opinions by this Committee (N . Y. County 641 [1975]), and companion committees of the Association of the Bar of the City of New York (N . Y. City 884 [1974)) and the Ame rican Bar Association (ABA 316 {1 967)) . The New York State Bar Association, as well, has rendered sign ificant opinions in the area (N.Y. State 343 {197 4) and 304 [1973)). The burgeoning use and expanding role of legal assistants, employed wide ly by law firms and bank and corporate law departments , necessary to enable the lawyer to provide quali ty service at reasonable cost, has indicated the need to remind the Bar of the essential guidelines to be followed in the employment of such assist- ants. 1 /As used in this opi nion "law clerk" means (i) a law schoo l g raduate no t (or not yet } admitted to the Bar of this State; (2) a law school graduate employed by a law firm as an associate, admitted in another jurisdiction but not admitted in New York : (3) law school students and (4) a law student s tudying under a certi ficate of c lerkship . "Para- lega l" means a pe rson t r ained at a s pecialized school or in a law office f or that purpose. Other l ay assistants, includ- ing l egal secretaries, managing clerks, accountants, engineers, investigators, etc . are also intended t o come within this opin ion . For convenience, we r efer t o al l as "legal assist- ants. M This opinion i s not intended t o apply to foreign law consultants, registered patent agents, or other similar licensed lay practitioners , whose activities are substantially governed by law . 79 New York County Lawyers' Association Opinion It is axiomatic . that none but a lawyer duly admitted to the Bar of th~s State may practice law here Any other person, no matter how deep, intense or comprehen- sive his or her training or knowledge, is a ~ person and may not engage in.the practice of ~aw. Moreover, any use of. legal assistants 1n other than the1r proper role and func- tion may wel l constitute a breach of the provisions of DR 3- lOl(A) of the Code of Professional Responsibility, prohibiting lawyers from aiding non-lawyers in the unauthorized practise of law . While the precise definition of what constitutes the practice of law is a l ega l question for courts to decide , and although sometimes elusive, certain guide posts are provided both by statute (See Judiciary Law, S484) and by prior ethical opinions. In simplest terms , a lega l assistant may not perform those functions which only lawyers may perform . Moreover, legal assistants "may never perform services which involve the exercise of the professional judgment of a lawyer (and] may not advise clients with respect to their legal rights" N.Y. County 641. As an employee of a lawyer, but not as an independent entrepreneur (Judiciary Law, §§478, 479, 484 and "486; cf. Spivak v . Sacks, 16 N.Y.2d 163 [1965]) he or she, may, however, perform virtually any other task of a ministerial or clerical na ture. He or she may conduct legal research, prepare memoranda of law, 3 I prepare all legal papers , interview prospective wiTnesses and, in ge neral , perform all services that do not require the exercise of independent pr ofessional judgment or parti- cipation, all subject to the continuing supervision of the lawyer by whom the legal assistant is employed. N.Y . County 641 N. Y. City 884 N.Y . State 44 (1967) ; N.Y. City 78 (1927- 28); EC 3-6. The legal assistant may also deal directly with the public either by oral or written com.-rnunication, provided that he or she properly identifies him or herse lf from the outset as ·a non-lawyer (N.Y. Ci ty 884; N. Y. State 500 [1978)) and, again, provided that such dealings do no t call for the independent exer cise of professional judgment. He or she may also deal directly with and appear before courts and other tribunals on routine matters, such as responding to calendar calls, provided no oral argument or exercise of judgment of any kind is required (N.Y. City 884; N. Y. State 44) and, of course , provided that such appearance would not _2_/8ut · see the l imited exceptions provided in Judiciary Law, S§478 and 484 with respect to law students employed by legal aid organizations and public offices. ~/Legal assistants may be credited for such work in a footnote or by other appropriate notation on the memorandum or brief provided the fact that the assistant is a non- lawyer is made clear . N. Y. State 299 (1973). 80 : ·,: N.Y. City78; ' ' . . ~ ,.~ . 81 New York County Lawyers' Association Opinion No. 666 Patently, the supervising lawyer should know or determine in advance whether a particular closing involves formalties only and thus is merely ministerial or whether decisions of a substantive nature will be involved. II. Disbarred Lawyers. One of the most difficult matters which the Bar must face is the necessity to impose discipline on its members. often that discipline is that of disbarment or suspension. 4 I In other cases lawyers have resigned from the Bar in the face of charges which have been or are likely to be filed. From the present inquiry and others like it, as well as from recent newspaper publicity with respect to the employment of d i sbarred lawyers by law firms, it appears to this Committee that it is appropriate to remind the Bar of the ethical standards to be applied with respect to the employment of disbarred lawyers. __ S_/ As a matter of law, disbarred lawyers are ex- pressly forbidden to perform any act which may only be done by admitted lawyers. Judiciary Law, §486. While the right of a disbarred lawyer to perform any particular act is a question of law upon which this Committee does not pass, the que stion of the employment of such a person is an ethical one. Judiciary Law, §90 directs the Appellate Divisions to "command" every lawyer who is disbarred or suspended "to desi st and refrain from the practice of law in any form, either as principal or. as agent, clerk or employee of another." (emphasis added). Two acts are specifically prohibited by that statute: the appearance as an attorney before any cou rt, tribunal or public body and the giving of a legal opinion or advice. (See also , to similar effect, 22 NYCRR S603.13 [Rules of the Appellate Division, First Department) and 22 NYCC S691.10 [Rules of the Appellate Division, Second Department}) . In our view, it is clear that the employment by a lawyer or law firm of a disbarred lawyer, in any capacity related to the practice of law is improper. Certain it is that our law rightly excludes __ 4_/Where suspension is imposed it customarily does not end automatically at the end of its stated period. Rather , the usua l £o rmulatio.n o:f the order imposing s u spen,sion· i s t hat the lawyer "i s suspended for a period of years and until further order of the Court." .2_/As used in this opi nion, "disbarred lawyers" includes la~~ers who are suspended from practice (during the period of s uch suspension and until reinstatement) or who have resigned from the bar in the face of charges or while under investigation. 82 New York County Lawyers ' Association Opinion No. 666 those who have been disbarred from the slightest participation in the work of a lawyer and his office, to which employment, as a layman, there could not be the slightest objection were it not for the fact of dis- barrment. Proopis v. Equitable Life Insurance Co. , 1B3 Misc. 379 {Sup. Ct., Kings Co. 19 44). I f , as a matter of law, the disbarred attornex is forbidden to render the services described in the guestion, then it is clearl i m ro er to em lo ~rn or their per orrnance . And , as a matter of professional propriety, the employment, by an attorney in good standing, of a disbarred attorney to perform any duties that lie in a doubt- ful zone between practicing law and not practicing law __ 6_/ {i ncluding the duties specified in the question_}_/) , should in the opinion of the Conunit tee, be dis- approved because such employment tempts and conduces to the vlolation of the plain intendment of any decree or order o f d1sbarment. It cannot be doubted that disbarment is always and everywhere intended to deprive the attorney of the r igh t to practice law, a nd even if the disbarred attorney be employed to render such services only as may not constitute the ~practice of l aw," yet there is in every such case the danger that he will, under cover or 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 con s titute such practice . N.Y. County 186 (1920) (emphasis added); accord, N.Y. county 4 00 (1951); N.Y. City 636 {19 43); N. Y. City 499 (1939); N.Y. City 423 (1937 and see N.Y . City 82-72 (1983). The danger that an unsuspecting member of the public or even other lawyers ma y be misled as the status cf a disbarred lawyer who is employed by a law firm is too grave to ignore. Moreov~r, such employment, especially fo r the purposes stated in the present inquiry, runs counter t o the intent of the order impos ing discipline . It is always the lawyer's duty to uphold the orders of a court and to avoid the appearance of impropriety . Consequently it is the __ 6_/i . e . , those of a legal assistant . _1_/The duties specified i n the inquiry there were preparation of pleadings and other legal documents. Here they are the taking of depositions and attendance at closings. 83 New York County Lawyers' Association Opinion No. 666 opLn~on of this Committee that it is improper for -a licensed lawyer to employ a disbarred lawyer for any purpose, or in any capacity, related to the practice of law. 8 I We ex- press no opinion as to whether a disbarred lawyer may be employed in some other capacity such as a process server, messenger, secretary, investigator, etc. For the reasons stated above, questions (1) and (3) are answered in the negative and question (2) in the affirmative with the caveat stated. October 29, 1985 8 /The Michigan Bar has taken a similar view, holding that a-lawyer may not employ a disbarred attorney in any capacity that would create the impression that the lawyer was permitting the disbarred attorney to undermine the Court's order of sus- pension or otherwise give the appearance of aiding the person to subvert the discipline imposed (Michigan CI-106 (1981]). But cf . Kentucky E-255 (1982) indicating that a disbarred lawyer could be employed to do anything a layman could do or to perform preparatory or ministerial work, provided that the disbarred lawyer has no client contact, is not a para-legal, has no office and prepares papers only in a draft form. That opinion approved the disbarred lawyer's preparing title abstracts and doing legal research. We do not so approve as these activities are clearly related to the practice of law. 84 Topic: Attorney Employing Disbarred or Suspended ... , NYC Eth. Op. 1998-1... NYC Eth. Op. 1998-1 (N.Y.C.Assn.B.Comm.Prof.Jud.Eth.), 1998 WL 1557150 The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics TOPIC:ATIORNEY EMPLOYING DISBARRED OR SUSPENDED ATIORNEY TO WORK IN LAW OFFICE; AIDING UNAUTHORIZED PRACTICE OF LAW Formal Opinion Number 1998 1 December 21, 1998 DIGEST:Attorney may not aid non lawyer, including disbarred or suspended attorney, in unauthorized practice of law. It is improper for lawyer or law firm to employ disbarred or suspended attorney in any capacity related to practice of law. What acts constitute unauthorized practice is question of law for Appellate Division. *1 CODE:DR3 101(A); DR1 102(A)(4); EC3 6. Q UESTION Under what circumstances, if any, may an attorney in good standing employ a disbarred or suspended attorney to work in a law office? OPINION An attorney in good standing is contemplating hiring a disbarred lawyer to work in her law office, and is concerned that his activities might result in her violation of the disciplinary rules. She asks what work, if any, it is permissible for him to perform in a law office. This question poses issues of both ethics and law, ultimately involving the application ofD R3 101 (A): "A lawyer shall not aid a non lawyer in the unauthorized practice oflaw. See Matter of Mason, 208 A.D.2d 1, 621 N.Y.S.2d 582 (1st Dep't 1995) (attorney violated "DR3 101 aiding a nonlawyer in the unauthorized practice oflaw] ). See also, DR1 1 02(A)( 4): "A lawyer or law firm shall not: ... Engage in conduct that is prejudicial to the administration of justice.. .. And see, Annotation, "Disciplinary Action Against Attorney for Aiding or Assisting Another Person in Unauthorized Practice of Law, 41 A.L.R.4th 361 (1985). Matter of Rosenbluth, 36 A.D.2d 383, 320 N.Y.S.2d 839 (1st Dep't 1971), observes that " a] suspended or disbarred attorney holds approximately the same status as one who has never been admitted.... This holding is consonant 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 in the courts of record of this state.... Another part of the same article, Judiciary Law §478, makes it unlawful for anyone not duly licensed and admitted in New York to practice or appear in court other than prose or to act in any manner that would give the impression he is an attorney. *2 Consistently with these statutes, in Matter of Gajewski, 217 A.D.2d 90, 634 N.Y.S.2d 704 (1st Dep't 1995), an attorney was disciplined for allowing a disbarred attorney to affix her name to affirmations included in court papers; and in Matter of Riely, 101 A.D.2d 351 , 475 N.Y.S.2d 473 (2d Dep't 1984), an attorney was punished for "aiding a suspended attorney in the unauthorized practice oflaw. See also, Matter ofMainiere, 274 A.D. 17, 80 N .Y.S.2d 31 (1st Dep't 1948): "Any member of the bar who lends assistance to a disbarred attorney which enables the latter to keep up the appearance of continuing professional standing subjects himself to discipline. Indeed, in Matter ofTakvorian, 240 WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 85 Topic: Attorney Employing Disbarred or Suspended ... , NYC Eth. Op. 1998-1... A.D. 95, 670 N .Y.S.2d 211(2d Dep't 1998), the court held that even inadvertently aiding a non lawyer in the practice oflaw can warrant professional discipline. Judiciary Law §90(2) requires the Appellate Division to insert in every order of suspension or disbarment that the attorney must "thereafter ... desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee. Additionally, the order must specifically '"'forbid .. . t]he appearance as an attorney ... before any court, judge, justice, board, commission, or other public authority and " t)he giving to another of an opinion as to the law or its application, or of any advice in relation thereto. By §§603.13(a), 691.10(a), 806.9(a) and 1022.26(a) of the Rules of the Appellate Division, all four Departments also explicitly require disbarred, suspended and resigned attorneys to comply fully with Judiciary Law§§478 and 486, as well as §§479 and 484. The Rules of the First(§603.13) and Second (§691.10) Departments contain additional language requiring such attorneys to '"'comply fully and completely with the letter and spirit of the statutes ""relating to practicing as attorneys at law without being admitted and registered, and soliciting of business on behalf of an attorney at law and the practice of law by an attorney who has been disbarred, suspended or convicted of a felony. In order to opine whether a lawyer would violate DR3 101 and DRl 102 by aiding anon lawyer including a disbarred or suspended attorney in "the unauthorized practice of law, it is first necessary to determine whether the disbarred attorney's contemplated conduct would constitute "unauthorized practice. See, generally, Annotation, "Nature of Legal Services or Law Related Services Which May be Performed for Others by Disbarred or Suspended Attorneys, 87 A.L.R .3d 279 (1978). At least two of our sister bar associations have already dealt with these issues at some length. *3 In Opinion# 92 15, the Committee on Professional Ethics of the Bar Association of Nassau County considered the question of whether an attorney in good standing may employ a disbarred attorney, in the capacity of a paralegal, to handle document drafting, research and organization of files. The Nassau County Opinion noted that notwithstanding Judiciary Law §§478, 486 and 90(2) and DR3 10 l(A), EC3 6 contemplates that it is permissible for lawyers to '"'delegate ] tasks to clerks, secretaries and other Jay persons acting under the attorneys' supervision. The Committee went on, however, to cite ABA Opinion 1434, unpublished Opinion 7 of the ABA Ethics Committee, and Opinion 666 of the New York County Lawyers' Association for the proposition that " the statutory and code provisions ... impliedly place greater restrictions upon the ability of a disbarred lawyer from earning a living by use of his or her training and talent and experience than are encountered by non lawyers generally. According to the Nassau County Opinion, however, the determination of what paralegals may do is more properly a matter of law beyond the purview of an ethics committee. N.Y. County 666 (1985) is not as deferential, holding that an attorney may not employ a disbarred lawyer as a law clerk whose functions would include the conduct of pre trial depositions and the attendance at real estate closings on behalf of the inquiring attorney. The New York County Opinion adhered to the view that "it is clear that the employment by a lawyer or law firm of a disbarred lawyer, in any capacity related to the practice of law is improper .... The danger that an unsuspecting member of the public or even other lawyers may be misled as to] the status of a disbarred lawyer who is employed by a Jaw firm is too grave to ignore. The Committee added, however, that it expressed "no opinion as to whether a disbarred lawyer may be employed in some other capacity such as a process server, messenger, secretary, investigator, etc. While concurring in the Nassau County Bar Association's general view that what constitutes the unauthorized practice of law is itself a question of Jaw and thus beyond this Committee's jurisdiction, we also agree with the conclusion of the New York County Lawyers' Association that it is clearly impermissible for an attorney to employ a disbarred lawyer to conduct depositions or attend closings on the attorney's behalf. We would add, moreover, that the employment of a disbarred lawyer is fraught with ethical peril even with respect to activities that nonlawyers may properly engage in. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 2 86 Topic: Attorney Employing Disbarred or Suspended ... , NYC Eth. Op. 1998-1... Courts may reasonably scrutinize such activities and conclude that their performance by a disbarred lawyer poses greater risk to the public than their performance by a nonlawyer. *4 Indeed , in Matter of Parker 241 A.D .2d 208, 670 N.Y.S.2d 414(1st Dep't 1998), the Appellate Division recently held that an attorney had "certainly violated DR3 lOl(A) by aiding a non lawyer in the practice of Jaw "by allowing .. . a resigned attorney .. . to prepare a contract of sale and appear on the seller's behalf in order to postpone a foreclosure sale. Noting that " w]e are certainly loath to have attorneys improperly delegating their responsibilities as attorneys to non lawyers and, depending on the circumstances of each case, severe penalties are warranted, the First Department cited with approval the hearing panel's analysis of the relevant issues: In sustaining Charge One, the Panel found that, by authorizing Butler, a resigned attorney, to negotiate, draft and finalize Mrs. Hunter's contract of sale and affidavit on Oct. 22, 1994, and to appear on her behalf and negotiate and execute the forbearance agreement on Oct. 24, 1994, respondent aided a non lawyer in the unauthorized practice of Jaw in violation of DR3 lOl(A). It noted the proliferation of the use of legal assistants in the last two decades and found generally that the appropriate use of legal assistants facilitates the delivery of legal services at reasonable cost in fulfillment of the obligation of lawyers to make legal counsel available to the public. Recognizing that there is no clear cut definition of the unauthorized "practice of law and the nature and scope of activities appropriately permissible to legal assistants, the Panel found, nevertheless, that "it is clear that delegation of tasks to legal assistants cannot substitute for the personal availability of the lawyer's experience and judgment to the client. While surmising that respondent may have been influenced by Butler's experience as a former lawyer and not doubting that respondent believed he was acting in good faith and appropriately, the Panel did not think that a reasonable lawyer under the circumstances would have been justified in the level of delegation which occurred, even if the ultimate advice would not have been different, and found that respondent "crossed the line between appropriate reliance on an assistant and abdication to a non lawyer of the lawyer's responsibility to the client. Guidance as to other activities that have been determined to constitute '"'unauthorized practice can be found in prior opinions of the Appellate Division. These would include the following : Matter of Emmanuel, 157 A.D .2d 134, 555 N.Y.S.2d 174 (2d Dep't 1990): Attorney disciplined who "permitted a nonlawyer to appear as her associate counsel. Matter of Caracas, 171 A.D.2d 358, 576 N .Y.S.2d 293 (2d Dep't 1991): Attorney disciplined who "allowed an employee, not admitted anywhere as an attorney, ""to consult with a client and to prepare legal papers for the client, who "was unaware .. . that the employee was not admitted to the practice oflaw. *5 Matter of Mason, supra: Attorney "improperly facilitated the practice oflaw by allowing non lawyer to try Housing Court case and another non lawyer to draft court complaints. Matter of Mainiere, supra: Attorney disciplined for permitting use of name as counsel in litigation in which disbarred attorney was interested, thereby enabling disbarred attorney to maintain appearance of being engaged in legal practice. Matter ofNadelweiss, 260 A.D. 89, 20 N.Y.S.2d 773 (1st Dep't 1940): Attorney disciplined for aiding his uncle, in whose Jaw office he was employed, in permitting a disbarred attorney to hold himself out as the uncle and practice under the latter's name. Matter of Lerner, 270 A.D. 602, 61 N.Y.S.2d 661 (1st Dep't 1946): Attorney disciplined for allowing disbarred attorney to use office, to hold himself out as entitled to practice Jaw, to interview witnesses and, in certain particular cases, to practice Jaw, and for allowing another disbarred attorney to use his office and his facsimile signature stamp. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 3 87 Topic: Attorney Employing Disbarred or Suspended ... , NYC Eth. Op. 1998-1... Matter of Sutherland, 252 A.D. 620, 300 N.Y.S. 667 (1st Dep't 1937): Attorney disciplined who "permitted and requested disbarred attorney "to perform the duties of a law clerk on numerous occasions. Matter of Olitt, 145 A.D.2d 273, 538 N.Y.S.2d 537 (1st Dep't), cert. denied, 493 U.S. 937, 110 S. Ct. 333, 107 L. Ed. 2d 322 (1989): Suspended attorney may not serve as "house counsel for company in which he has controll ing interest, appear in court for brokerage firm while filing papers in his name, draft contracts for brokerage house, or appear in arbitration proceedings before stock exchange allegedly pro se on behalf of company in which he has interest. Matter of Stahl, 200 A.D.2d 285, 613 N.Y.S.2d 437 (2d Dep't 1994): While employed in law office, disbarred attorney improperly made "determinations to initiate actions at law and settle collection claims and actions. Matter of Abbott, 175 A.D.2d 396, 572 N.Y.S.2d 467 (3d Dep't 1991): Suspended attorney may not " maintain an office ... giving at least the appearance of a law office, with the building directory and office door designating him as an attorney; may not use letterhead and envelopes designating him an attorney; may not continue to represent clients or attempt to do so; and may not continue to hold clients' funds in escrow. Matter ofKoffier, 236 A.D. 240, 258 N.Y.S. 611 (1st Dep't 1932): Disbarred attorney held in contempt for representing to trial court that he was an attorney entitled to practice, examining witnesses in case, and testifying as an expert in case while identifying himself as an attorney without revealing disbarment. *6 Matter of Markowitz, 28 A.D.2d 262, 284 N.Y.S.2d 463 (1st Dep't 1967): Suspended attorney may not represent "sellers, as clients, in two real estate or purchase and sale transactions. Proopis v. Equitable Life Assur. Soc. of the U.S., 183 Misc. 378, 48 N.Y.S.2d 50 (Kings Sup. Ct. 1944): Disbarred attorney may not "associate himself with counsel in an examination before trial or any other legal proceeding in which he actively participates in planning and executing the progress of the litigation by his "presence .. . so that he may assist and take part in a legal proceeding as an "actuarial expert "by giving advice to counsel as the facts, upon which he is an expert, are developed. 2 Matter of Israel, 230 A.D.2d 293, 655 N.Y.S.2d 538 (1st Dep't 1997): Suspended attorney disbarred for "continuing to represent clients and practice law. Matter of Ratafia, 268 A.D. 987, 51 N.Y.S.2d 558 (2d Dep't 1944): Disbarred attorney may not serve as senior law clerk in State Labor Department, examining and preparing contested cases for hearings before referees, disposing of applications for adjournments, initiating investigations, and issuing subpoenas. Matter of Katz, 35 A.D.2d 159, 315 N.Y.S.2d 97 (1st Dep't 1970): Suspended attorney may not be employed by a City Marshal, a public official whose work is closely allied with courts and judicial proceedings and whose duties include enforcing court orders. Matter of Spar, 100 A.D.2d 71 , 473 N.Y.S.2d 192 (1st Dep't 1984): Disbarred attorney guilty of misdemeanor and contempt for unauthorized practice oflaw. Matter of Glick, 126 A.D.2d 5, 512 N.Y.S.2d 413 (2d Dep't 1987): Suspended attorney guilty of misdemeanor for unauthorized practice of law. On the other hand, in Matter of Rosenbluth, supra, a divided court held it permissible for a disbarred attorney to run a calendar watching service. According to the First Department majority, citing various Opinions of the A.B.A. and this Association, among the other "law related activities that suspended or disbarred attorneys "have been permitted WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 4 88 Topic: Attorney Employing Disbarred or Suspended ... , NYC Eth. Op. 1998-1... to engage in are: aiding an attorney in preparing a law book (in which event disbarred lawyer's name may be used); soliciting lawyers for process serving business to be turned over to a process serving firm; and acting as an investigator or adjuster for an insurance company. The Court of Appeals has analyzed these issues in Matter of Rowe, 80 N.Y.2d 366, 590 N.Y.S.2d 179, 604 N.E.2d 728 (1992). In discussing the right of a suspended lawyer to publish "a law related article on the right to refuse treatment, the court confined " t]he practice of law to "the rendering of legal advice and opinions to particular clients and held the article permissible as an exercise of the First Amendment because it "sought only to present the state of the law to any reader interested in the subject and '"'neither rendered advice to a particular person nor was intended to respond to known needs and circumstances of a larger group. The Court of Appeals cited Matter ofRosenbluth, supra, approvingly for the proposition that the Appellate Division in Rowe had "improperly 'prohibit ed] him from engaging in endeavors which he could have undertaken had he never been admitted to the Bar in the first place .... B'D' The Court of Appeals also held that the suspended attorney could properly use "the letters J .D. following his name, as " t]he letters identified him as one who had successfully completed a law school curriculum, not as a member of the Bar licensed to practice law. *7 Citing the Second Department's order in Matter of Wolfram, 3 Nass. Co. 92 15 suggested that an adjudication of the question of what a disbarred or suspended attorney may do in a specific instance might be obtained by motion in the Appellate Division. While Rosenbluth won relief in precisely that fashion to enable him to run a calendar watching service, it is noteworthy that, without elucidation, the Second Department denied Wolfram's motion to allow him "to be employed in a law office as a paralegal, law clerk or legal research assistant. It is worth repeating that N.Y. County 666 declined to opine on whether a disbarred lawyer might properly be employed by a law firm as a process server, messenger, secretary or investigator; and we concur 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 while "desisting] and refraining] from the practice of law in any form. CONCLUSION 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. Footnotes One ower court op n on s a so c ted. 2 Th s case s c ted approv ng y n N.Y. County 666 for the propos ton: ""Certa n t s that our aw r g d y exc udes those who have been d sbarred from the s ghtest part c pat on n the work of a awyer or ofh s off ce, to wh ch emp oyment, as a ayman, there cou d not be the s ghtest object on, were t not for the fact of d sbarment." 3 The correct c tat on of the order s /27/89 N.Y.L.J. 6. NYC Eth. Op. 1998-1 (N.Y.C.Assn.B.Comm.Prof.Jud.Eth.), 1998 WL 1557150 End of Document (> 20 6 Thomson Reuters. No cam to or g na U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 5 89 ETHICS ADVISORY PANEL Opinion #93-28, Request #361 Issued 1-\ay 12, 1993 An attorney asks whether a suspended attorney may accept employment as a legal assistant or paralegal in a law firm. The Panel directs the inquiring attorney to Provisional Order 18 entitled "Use of Legal Assistants" which has been in effect since February 1, 1983. This order enumerates a list of functions which a legal assistant may participate in. Item 10 of this list provides: A lawyer shall not use or employ as a legal assistant any attorney who has been suspended or disbarred pursuant to an order of this court, or an attorney who has resigned in this or any other jurisdiction for reasons related to a breach of ethical conduct. See also, Ethics Advisory Opinion #90-12, Request #78, Issued February 27 1 1990. Pursuant to this Provisional Order, the attorney may not hire a suspended attorney as a paralegal or assistant in the law firm. 90 Home I Contact Us Login NEWS & PRESS ABOUT US BAR FOUNDATION Bar Members Cl£&Books PubUc •nrormatlon Teachers & Students SCBar Groups Bar Members II Ethics Advisory Opin ons II Opinion View Ethics Advisory Opinions UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER'S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWVER DISOPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWVER CONDUCT. Ethics Advisory Opinion 92-20 can a S.C. law finm/attorney hire a non-S.C. Bar member, who was fonmerly an attorney in another state and was disbarred from practice in that state, to do legal research and other paralegal work? Opinion: No. See SCAR 413, paragraph 42 (set forth below). South Carolina Appellate Court Rule 413, Paragraph 42: Employment of Resigned or Disciplined Attorneys: When an attorney has resigned for reasons related to a branch of ethical conduct (hereinafter referred to as "resigned") or has been suspended or disbarred pursuant to an order of the Court, he may not be employed by a member of the Bar of South carolina as a paralegal, investigator or in any other capacity connected with the practice of law. Any licensed attorney who, with knowledge of a person's status as a suspended, disbarred or resigned attorney, employs such person in manner prohibited by this Rule shall be subject to discipline. Any suspended, disbarred or resigned attorney who accepts such employment shall be deemed in contempt of the Court and punished accordingly. (Note) Fonmer Rule on Disciplinary Procedure was redesignated South carolina Appellate Court Rule 405 by Order of the Supreme Court on January 10, 1990, and was to become effective September 1, 1990. Subsequently, by Order of the Supreme Court of South Carolina on August 6, 1990, SCACR 405 was renumbered SCACR 413 without change. 950 Taylor Street, Columbia, South carolina 29201 I Phone (803) 799-6653 I Fax (803) 799-4118 I scbar-info@scbar.org 91 Rule 3-6.1. Generally, FL ST BAR Rule 3-6.1 West's Florida Statutes Annotated Rules Regulating the Florida Bar (Refs & Annos) Chapter 3. Rules of Discipline 3-6. Employment of Certain Lawyers or Fonner Lawyers West's F.S.A Bar Rule 3-6.1 Rule 3-6.1. Generally Currentness (a) Authorization and Application. Except as limited in this rule, persons or entities providing legal services may employ suspended lawyers and former lawyers who have been disbarred or whose disciplinary resignations or disciplinary revocations have been granted by the Florida Supreme Court for purposes of this rule such lawyers and former lawyers are referred to as "individual(s) subject to this rule ] to perform those services that may ethically be performed by nonlawyers employed by authorized business entities. An individual subject to this rule is considered employed by an entity providing legal services if the individual is a salaried or hourly employee, volunteer worker, or an independent contractor providing services to the entity. (b) Employment by Former Subordinates Prohibited for a Period of3 Years. An individual subject to this rule may not, for a period of 3 years from the entry of the order pursuant to which the suspension, disciplinary revocation, or disbarment became effective, or until the individual is reinstated or readmitted to the practice of law, whichever occurs sooner, be employed by or work under, the supervision of another lawyer who was supervised by the individual at the time of or subsequent to the acts giving rise to the order. (c) Notice of Employment Required. Before employment commences, the entity must provide The Florida Bar with a notice of employment and a detailed description of the intended services to be provided by the individual subject to this rule. (d) Prohibited Conduct. (1) Direct Client Contact. Individuals subject to this rule must not have direct contact with any client. Direct client contact does not include the participation of the individual as an observer in any meeting, hearing, or interaction between a supervising lawyer and a client. (2) Trust Funds or Property . Individuals subject to this rule must not receive, disburse, or otherwise handle trust funds or property. (3) Practice of Law. Individuals subject to this rule must not engage in conduct that constitutes the practice of law and such individuals must not hold themselves out as being eligible to do so. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 92 Rule 3-6.1. Generally, FL ST BAR Rule 3-6.1 (e) Quarterly Reports by Individual and Employer Required. The individual subject to this rule and employer must submit sworn information reports to The Florida Bar. Such reports must be filed quarterly, based on the calendar year, and include statements that no aspect of the work of the individual subject to this rule has involved the unlicensed practice of law, that the individual subject to this rule has had no direct client contact, that the individual subject to this rule did not receive, disburse, or otherwise handle trust funds or property, and that the individual subject to this rule is not being supervised by a lawyer whom the individual subject to this rule supervised within the 3 years immediately previous to the date of the suspension, disbarment, disciplinary resignation, or disciplinary revocation. Credits Amended March 16, 1990, effective March 17, 1990 (558 So.2d 1008); July 23, 1992, effective Jan. 1, 1993 (605 So.2d 252); Sept. 24, 1998, effective Oct. 1, 1998 (718 So.2d 1179); May 20, 2004 (875 So.2d 448); Oct. 6, 2005, effective Jan. 1, 2006 (916 So.2d 655); Dec. 20, 2007, effective March 1, 2008 (978 So.2d 91); Nov. 19, 2009, effective Feb. 1, 2010 (24 So.3d 63); April 12, 2012, effective July 1, 2012 (101 So.3d 807); May 29, 2014, effective June 1, 2014 (140 So.3d 541). Notes of Decisions (12) West's F. S. A. Bar Rule 3 6.1 , FL ST BAR Rule 3 6.1 Florida Supreme Court Rules of Civil Procedure, Judicial Administration, Criminal Procedure, Civil Procedure for Involuntary Commitment of Sexually Violent Predators, Worker's Compensation, Probate, T raffic Court, Small Claims, Juvenile Procedure, Appellate Procedure, Certified and Court Appointed Mediators, Court Appointed Arbitrators, Family Law, Certification and Regulation of Court Reporters, Certification of Spoken Language Interpreters, and Qualified and Court Appointing Parenting Coordinators are current with amendments received through 06/01/16. All other State Court Rules are current with amendments received through 06/01/16. End of Document (> 20 6 Thomson Reuters. No cam to or g na U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No cam to or g na U.S. Government Works. 2
