The Lawyer's Lawyer
Q. Unable to practice law since her suspension a few years ago, my old law school classmate asked whether I could use her as a paralegal at my own firm. Would I get in trouble if I hire her?
A. The answer will depend upon your state and the care you exercise in hiring and supervision.
As lawyers, we may advocate for second chances on behalf of clients seeking redemption from past misdeeds. But we show far less enthusiasm when receiving resumés from former colleagues.
Although most states permit ex-lawyers to work as paralegals and law clerks, a growing number of states forbid law firms from hiring them in any capacity. Banned from occupying or sharing office space where lawyers practice law, firms in states like Illinois and New Jersey can't even hire sanctioned lawyers to clean their floors. Other states, like Wisconsin, preclude law firms from hiring them to perform "law-related work" that can be done by law clerks and paralegals.
Even where firms may hire suspended and disbarred lawyers, their work must be carefully supervised to prevent the unauthorized practice of law. Many states require supervising attorneys and ex-lawyers to notify ethics boards in writing of the employment and of the duties to be assigned.
When lawyers lose their licenses, they don't lose the expertise they have gained throughout their careers. Their experience may be extremely valuable in a variety of supporting roles within a firm. With the right supervision, formerly admitted attorneys may perform research, draft documents, compile evidence, assist with case investigations, and facilitate client communications on matters of scheduling, the status of cases and other important case information.
They may be capable of working independently with little or no supervision, but this is not an option here. As a supervising attorney responsible for the actions of all subordinates, you must ensure that the employee's conduct fully complies with all ethical and professional obligations. Beyond the need to perform these tasks from an office that you staff on a full-time basis, you must take steps to ensure that ex-lawyers will not:
➤ Hold themselves out as attorneys - to prevent any confusion, any emails or other correspondence sent by these employees should specify their roles as "paralegals," "legal assistants," or similar titles;
➤ Provide legal advice to clients or to potential clients - some factual case information may be shared, but the person must not make recommendations, provide case evaluations or communicate a legal analysis of issues to the client. This person may provide you with such analyses, but only you may dispense legal advice to clients;
➤ Appear on a client's behalf in court, at depositions or other proceedings;
➤ Sign pleadings to be filed in courts or other tribunals; or
➤ Handle money - these assistants must not be given access to the firm's trust account or be provided with check-writing authority.
It may be tempting to assign ex-lawyers to help on cases that they handled as members of the bar, or to facilitate the representation of former clients with whom they have already established a rapport. Don't. No matter how many disclaimers you provide, these clients may continue to regard their old lawyers as capable of providing legal advice and other services that are no longer allowed.
Ex-lawyers may be compensated for their experience, but may not take a cut of legal fees. Although there is no restriction on the level of pay, compensation which far exceeds the going rate for paralegals and other non-lawyer assistants may prompt suspicion that the ex-lawyer is continuing to practice law. Since suspended and disbarred lawyers are already on Bar Counsel's radar, you should take extra care to avoid the appearance of such improprieties.
If properly supervised within ethical boundaries, ex-lawyers may launch productive careers in firms that give them a second chance. Just make sure you aren't taking chances with your own career in the process.