By David Elkanich, Peter Jarvis & Sylvia Stevens
Anyone who reads the "Discipline" section of the Bulletin knows that lawyers are suspended every month and that lawyers facing suspension must address critical questions about what to do with their practices and how to support themselves during their suspension.
This follows because suspended lawyers cannot practice law or even hold themselves out as authorized to practice law. See, e.g., ORS 9.160(1); In re Devers, 328 Or 230, 974 P2d 191 (1999).
A suspension from the practice of law requires, as a first step, that the suspended lawyer make appropriate arrangements to cease the practice of law for the requisite period. Affected clients must be notified of the suspension and their cases transitioned to temporary or permanent successor counsel unless, with the client’s informed consent, further action on a client’s matter can wait until the suspended lawyer is again eligible to practice law. Notice to the clients is particularly important because the choice of successor counsel is the client’s choice. Client funds in trust must be returned to the client or delivered to successor counsel, unless otherwise agreed by the client and successor counsel. Affected opposing counsel, pro se parties and courts or agencies before whom appearances are required during the period of suspension must be notified. Suspended lawyers must also take reasonable steps to assure that their phones are not answered in a manner that suggest a present authorization to practice, and changes may have to be made to firm signage, letterhead and websites.
On the other hand, and in contrast to many jurisdictions, Oregon does not prohibit suspended lawyers from working in law offices and performing tasks that may be performed by other non-lawyers, including legal assistants. See, e.g., OSB Legal Ethics Op No 2005-24. This is appropriate since, under the right circumstances, suspended lawyers may bring with them a level of experience that can be of real value to the lawyers who employ them and their clients.
Neither the Oregon RPCs nor the Oregon statutes contain clear black-letter guidance concerning what is and is not the practice of law. This article attempts to provide some guidance as to what a suspended lawyer may do in the capacity of a legal assistant and what only a lawyer in good standing may do.
What a Legal Assistant or Suspended Lawyer May Do
A. Acceptance of a Subordinate Role
This may be the most difficult aspect of a suspended lawyer’s employment as a legal assistant. A suspended lawyer who is accustomed to working independently and making decisions on complex issues about which she has considerable expertise may well find it difficult to step back and take direction completely from someone else. The suspended lawyer must recognize and accept that she cannot practice law and does not have her own clients during the period of suspension.
Put another way, a lawyer in good standing1 must be responsible for and must review and approve documents prepared or other work performed by a non-lawyer subordinate. The required degree of review of a non-lawyer’s work will necessarily depend upon the non-lawyer’s level of experience and the complexity of the task at hand. Nevertheless, good sense dictates careful and consistent supervision to assure both that the work is competent and that the subordinate is not practicing law. In addition to the malpractice risk that flows from inadequate supervision of a subordinate’s work, lawyers are subject to disciplinary sanctions for failing to properly supervise their non-lawyer assistants.2
We cannot stress strongly enough that the relationship of supervision between the supervisory lawyer and the suspended lawyer must exist in fact and not just on paper. Supervision is particularly likely to be inadequate if the ostensibly subordinate but suspended lawyer is, in fact, significantly more competent in a practice area than the ostensibly supervisory lawyer. On this point, Florida Bar v. Forrester, 818 So. 2d 477 (2005) is instructive. The Florida Supreme Court found disbarment to be the only appropriate sanction for a lawyer who, while suspended, actively supervised a novice attorney she had supposedly hired to run her office during the period of suspension. The court observed, for example, that as a matter of fact, Forrester did much more supervision of the novice attorney’s work than vice versa and that Forrester even directed what her supposed supervisor should say to clients in phone calls. In other words, an arrangement by which a suspended but experienced lawyer is supervised by a lawyer who is in good standing but is inexperienced is likely inadequate and may be improper. Effective supervision can only be provided by someone with the skills to give it.
B. No Legal Advice
Only lawyers in good standing may give legal advice to third parties. See, e.g., In re Kraus, 295 Or 743, 670 P2d 1012 (1983) (refusing to reinstate a suspended lawyer who continued to practice law during the suspension period); In re Whipple, 320 Or 476, 886 P2d 7 (1994) (suspended lawyer’s discussions with a client regarding a probate and the duties of the personal representative constituted the unlawful practice of law).
Nevertheless, lawyers frequently deliver their advice through letters that the lawyers dictate but which are typed or even signed for the lawyers by their non-lawyer staff. Lawyers may also direct their non-lawyer staff to convey certain information orally or in writing to their clients. For the most part, however, information conveyed by non-lawyer staff must be limited to facts or simple statements of the lawyer’s conclusions or opinions. For instance, a lawyer may properly instruct her legal assistant to telephone a client to say that the lawyer has researched the client’s question and the answer is "no." The lawyer may also ask the legal assistant to perform the legal research and suggest the answer; after reviewing the research and confirming the assistant’s conclusions, the lawyer may then instruct the assistant to relay the lawyer’s conclusion. The lawyer may not, however, authorize the assistant to research the question and answer the client’s question on her own. The lawyer must also instruct the assistant not to elaborate on the answer or attempt to answer a different question. Matters of professional judgment must be decided by lawyers in good standing.
When a suspended lawyer is asked to or is in a position to repeat past advice given by the suspended lawyer prior to the suspension, this can be problematic depending on the circumstances. The problem can become acute because of the difficulty in distinguishing the repetition of past advice from what is in reality is the rendering of present or future advice. Consider the following:
The former client calls suspended lawyer and asks for a copy of part (or all) of the former client’s pre-existing file. In this circumstance, suspended lawyer may, and probably must, meet this request. Cf. OSB Legal Ethics Op No 2005-125 (governing a lawyer’s general duties to provide files to former clients).
The supervising lawyer, for whom suspended lawyer is working as a legal assistant, asks for suspended lawyer’s opinions and analysis, including reasons for advice previously given to a former client now represented by the supervising lawyer. The suspended lawyer may, and again probably must do so, as long as the decision whether the client should act on that previous advice is a judgment only made by the supervising lawyer.
Suppose, on the other hand, that the former client, not the supervising lawyer, calls the suspended lawyer and asks for a repetition of advice given while the suspended lawyer was in good standing. On its face this appears identical to the delivery of a document previously prepared containing legal advice. However, the former client’s question, though nominally a request for repetition of prior oral advice, may in fact be a request for ongoing or future advice.
For instance, what if the former client announces that she has just encountered a situation that she believes is similar to one on which suspended lawyer advised her last year and wants to know what suspended lawyer’s past advice was so that she can follow it now? Or what if the former client asks the lawyer to read from a letter or memorandum in the file that contained the desired advice? There is no question that the suspended lawyer cannot advise the client about her new situation even if his advice would be identical to what he gave her previously. Moreover, it will often be difficult to argue compellingly that repeating advice is meaningfully different than giving legal advice. The suspended lawyer is still applying the law and legal reasoning to a specific set of facts in a context in which the difference between past and present issues may be anything but clear to the ostensibly former client.
In the absence of clear guidance from the court on this point, we caution suspended lawyers that the verbal repetition of past advice to former clients is a relatively high risk activity since, if nothing else, the line between past and present will often be unclear.
C. Drafting of Documents
According to State ex rel Oregon State Bar v. Lenske, 284 Or 23, 31, 584 P2d 759 (1978), a suspended lawyer or legal assistant may compose and draft legal documents such as contracts, complaints, research memoranda and the like so long as they are reviewed and approved by a lawyer in good standing before they are sent out of the office or otherwise acted upon.
The Lenske court cited with approval ABA Opinion 316 (1967), which reads:
A lawyer can employ law secretaries, * * * law researchers, * * * nonlawyer draftsmen or nonlawyer researchers. In fact, he may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings that are a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible for it to the client. In other words, we do not limit the kind of assistants the lawyer can acquire in any way to persons who are admitted to the Bar, so long as the nonlawyers do not do things that lawyers may not do or do the things that the lawyers only may do.
Consistent with the non-lawyer’s subordinate role as discussed above, such written work must be materially reviewed by the supervising lawyer unless it is a "please find enclosed" type of letter or a similar document that does not require the suspended lawyer to offer any legal advice.
D. Verbal Communications
When a non-lawyer speaks directly with a client of a lawyer, there is considerable risk that the non-lawyer may stray into the giving of legal advice or may be understood by an unsophisticated client as having done so. This risk is greater for suspended lawyers, who are used to giving legal advice as a matter of course, than for other non-lawyers. There may also be a similar temptation to take legal positions when suspended lawyers, as distinct from other non-lawyers, speak directly with an opposing lawyer or an unrepresented person.
For this reason, suspended lawyers should be particularly careful to keep their verbal communications with others to a minimum and to monitor their content with care. In any verbal communications, the best practice is for the suspended lawyer to remind the supervising lawyer’s clients, and third parties, that the suspended lawyer is acting only as a legal assistant.
Suspended lawyers may collect legal fees for work performed prior to the suspension. For work performed during a period of suspension, however, the rules against fee splitting apply equally to suspended lawyers and to other non-lawyers. At the risk of some oversimplification, Oregon RPC 5.4 permits non-lawyers to be paid a salary, to be paid on an hourly basis without respect to the lawyer’s collection of fees from specific clients, and to be paid as part of a firm’s profit-sharing plan. A non-lawyer cannot, however, simply be given a percentage of the fees received. As a corollary matter, the supervising lawyer must ensure that charges to clients for the suspended lawyer’s work as a legal assistant are within the range of charges for comparable services in the community. To do otherwise risks that the supervising lawyer will charge her clients an excessive fee.
We turn now to four more specific questions about law-related work:
1. Can a legal assistant or suspended lawyer work for more than one firm at a time? There is no black letter prohibition against multiple employment. On the other hand, such employment could raise conflict of interest issues or issues relating to the need to protect confidential client information that could require further action by the lawyers involved. Cf. OSB Legal Ethics Op No 2005-50.
2. May a legal assistant or suspended lawyer provide services from her own office? Once again, there is no black letter prohibition, and the development of telecommuting suggests that legal assistants — either as employees or independent contractors — could work from their own offices, their homes or from other locations separate from the hiring lawyer. As an independent contractor, a suspended lawyer working as a legal assistant would also be able to employ others to assist in the performance of the work. The difficulty with the "off-site" scenario is the increased likelihood that the suspended lawyer will be working without adequate supervision, a situation that puts both the suspended lawyer and the supervising lawyer at risk. Oregon RPC 5.3 requires an adequate degree of supervision by the licensed lawyer, which is problematic when the legal assistant is not in the same office. There is also a significant risk of confusion to clients, opposing parties and counsel, and the courts, if the suspended lawyer operates from an office that is entirely independent of the supervising lawyer.
As discussed above, it cannot be overemphasized that both the suspended lawyer and the supervising lawyer must see to it that the suspended lawyer neither gives legal advice nor holds himself out as authorized to give legal advice or have ultimate responsibility for a client matter. Cf. Oregon State Bar v. Smith, 149 Or App 171, 942 P2d 793 (1997).
3. May legal assistants or suspended lawyers be included on a firm’s letterhead? If they are employed by a firm, the answer is "yes," as long as they clearly are identified as non-lawyers. Cf. OSB Legal Ethics Op No 2005-65.
A period of suspension can be a difficult time for any lawyer. During that period the suspended lawyer cannot "have clients" in the sense that a lawyer in good standing has clients, cannot hold herself out as eligible to practice law and cannot practice law. As the Florida Supreme Court made clear in Forrester, the suspended lawyer may not create an "alternate reality" in which it only appears her work is being supervised by a lawyer in good standing.
At the same time, suspension does not mean that the suspended lawyer must be completely removed from providing services to his or her former clients. Working as a legal assistant for the supervising lawyer who has taken over the suspended lawyer’s former clients will help to minimize the disruption of the clients’ matters resulting from the suspension and transition of the case to new counsel. Of course, this assumes that the client is fully informed about the suspended lawyer’s circumstances and wishes to have the suspended lawyer’s continued connection to the client’s legal matters.
Above all, suspended lawyers must be truly subordinate. Both the suspended and the supervisory lawyer must understand their roles and have a commitment to ensure that their conduct complies with relevant law and rules of professional conduct.
1. A lawyer in good standing is an active member of the bar who is not under a disciplinary or other suspension.
2. RPC 5.3 provides:
With respect to a nonlawyer employed or retained, supervised or directed by a lawyer:
(a) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(b) except as provided by Rule 8.4(b), a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action
ABOUT THE AUTHOR
Peter Jarvis is a partner at Hinshaw & Culbertson, whose practice emphasizes professional responsibility and risk management issues. He can be reached at pjarvis @hinshawlaw. com or by calling (503) 243-3243. David Elkanich is an associate at Hinshaw & Culbertson. He can be reached at delkanich@hinshawlaw. com. Sylvia Stevens is assistant general counsel of the Oregon State Bar. She can be reached at (503) 620-0222 Or (800) 452-8260, ext. 359, or by e-mail at sstevens@ osbar.org.
© 2006 David Elkanich, Peter Jarvis & Sylvia Stevens