KNOW, the Magazine for Paralegals Spring 2014 | Page 22

profession, protection to the public and undermines and presents enforcement problems for local
and state bar associations. On a national level, the
American Bar Association has developed the Model
Rules for Professional Conduct. Teri will discuss
how the ABA has dealt with this issue in their Model
Standards and Ethical Opinions.

Teri Cannon, Esq.:
Under the ABA Model Rules for Lawyer Dis-

ciplinary Enforcement, a disbarred or suspended
lawyer is obligated to inform clients, co-counsel and
opposing counsel; return client property; refund
unearned fees; and withdraw from representation if
the client does not substitute new counsel.
The ABA does not have a model rule that either
prohibits or endorses disbarred lawyers working in
another lawyer’s practice. It is universally understood that, during suspension or after disbarment,
the former lawyer becomes a nonlawyer-lay person
and is subject to the same laws and rules concerning the practice of law as other laypersons. In other
words, as nonlawyers, they may not engage in the
practice of law in and in most jurisdictions are subject to criminal prosecution for doing so. Earlier and
unpublished ABA opinions advise lawyers against
employing disbarred lawyers even to do clerical
work because of the practical difficulty of confining
the person to activities that are not the practice of
law.
So what are the things a disbarred lawyer IS
prohibiting from doing under this line of reasoning?
We know that all jurisdictions consider the following to be the practice of law: representing a client
in court (and, depending on the jurisdiction, in
some or all state administrative agencies); interpreting legal documents and the law for clients; giving
clients legal advice about their rights, responsibilities, and how to proceed in a legal matter; accepting cases and setting legal fees. Lawyers remain
responsible for the work of any nonlawyer they
retain or employ for ethical violations and actions
that lead to malpractice, and may also be charged
with aiding in unauthorized practice if the nonlawyer crosses the line into the practice of law.
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Stacey and Nancy are justifiably concerned that
someone who has violated the ethics rules in a
serious enough manner to be disbarred or not to
be admitted in the first place may breach ethics
again and harm clients.
They are also disturbed that allowing a person
with this kind of record to serve as a paralegal
hurts the image of the paralegal profession. So
why do some states allow this? What are the competing interests? How do states that allow this
protect against future ethical breaches by such
persons? Does it matter what the disbarred or
suspended lawyer did to be sanctioned?
As Nancy has discussed above, the question
of whether a disbarred or suspended lawyer can
continue to work in some capacity in the legal
profession has been addressed by most states.
The ethics rules, bar association opinions, and
court cases represent a range of views. According
to a 2012 ABA survey, at least 11 states prohibit
disbarred and suspended lawyers from working in
the legal profession and at least 18 allow it. (See
2012 Survey of Unlicensed Practice of Law Committees at abanet.org.)
(See 2012 Survey of Unlicensed Practice of Law
Committees at abanet.
org.) What is important
is that the ones that allow usually have additional limitations on the
nature of the work that
the person can perform
and other regulatory
requirements designed
to protect clients and
heighten awareness of
the employing lawyer’s
responsibility.
For example, while
some states allow the
disbarred lawyer to
work as a paralegal,
others limit work in a
legal environment to a
clerical role or even to a
purely non-law-related