Can a Kentucky lawyer employ a disbarred or suspended lawyer to do work, and what can that person do?

Plain-English summary

The committee reconsidered KBA E-228, which it expressly overruled and replaced with this opinion. The question was whether a lawyer may employ a presently disbarred or suspended lawyer to perform duties. The committee answered with a qualified yes.

It surveyed the conflicting landscape: ABA Informal Opinion 7 had said an attorney should not employ a disbarred lawyer even for office work, given the practical difficulty of confining the activities to non-practice and because such employment shows disrespect to the courts. Kentucky law took a different view. Howton v. Morrow defined "practicing law" broadly to include giving advice and preparing wills, contracts, deeds, and mortgages, and Lester v. Kentucky Bar Assn said in dicta that a disbarred attorney may serve as a law clerk, though a court will look behind the title to the actual duties. SCR 3.020 defines the practice of law, SCR 3.470 makes it unprofessional conduct to aid the unauthorized practice, and DR 3-101(A) bars a lawyer from aiding a non-lawyer in unauthorized practice. Finding no per se rule against the hiring, the committee concluded the better course for society and the former lawyer is that such persons be employable for functions that are not the unauthorized practice of law.

It set both general and specific provisos. Generally, the individual may do anything a layperson could do and may perform preparatory or ministerial work. Specifically: the person may have no contact whatsoever with a lawyer's client; is not a paralegal within SCR 3.700; may not have an office or place in the lawyer's facility; may do drafting only in draft form submitted to the responsible lawyer for approval; may handle clerical aspects of a probate matter; may do an abstract title examination; and may provide legal research to a lawyer. The committee stressed that an attorney who hires a suspended, disbarred, or resigned lawyer does so at the attorney's own risk: if that person engages in any unauthorized practice, the employing lawyer is guilty of unprofessional conduct and subject to discipline.

Currency note

This opinion was issued in 1981 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. A later opinion, KBA E-336, addressed a suspended lawyer serving as a paralegal after the suspension period. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer hire a disbarred lawyer at all under this opinion?

A: Yes, conditionally. The committee found no per se bar and allowed employment for preparatory or ministerial work a layperson could do, subject to strict provisos.

Q: What work was off limits for the disbarred or suspended person?

A: The committee barred any contact with a lawyer's client, treated the person as not a paralegal under SCR 3.700, barred having an office in the lawyer's facility, and required that any drafting go only in draft form to the responsible lawyer for approval.

Q: What specific tasks did the committee permit?

A: Clerical aspects of a probate matter, an abstract title examination, and providing legal research to a lawyer, among work a layperson could do.

Q: What is the risk to the employing lawyer?

A: The committee said the lawyer hires such a person at the lawyer's own risk; if the person engages in any unauthorized practice, the employing lawyer is guilty of unprofessional conduct and subject to discipline.

Background and rules framework

The opinion applies DR 3-101(A) (a lawyer shall not aid a non-lawyer in the unauthorized practice of law) and SCR 3.020 (definition of the practice of law) and SCR 3.470 (aiding unauthorized practice), against the appearance-of-impropriety concern of Canon 9. The modern analogs are Model Rule 5.5 (unauthorized practice of law) and Model Rule 5.3 (responsibilities regarding nonlawyer assistants). The committee treated the disbarred or suspended lawyer as a layperson for these purposes, permitting only non-practice tasks under supervision.

Citations and references

Rules of Professional Conduct:

• DR 3-101(A) (no aiding unauthorized practice); modern analog Model Rule 5.5
• SCR 3.020 (practice of law); SCR 3.470 (aiding unauthorized practice); SCR 3.700 (paralegals)
• Canon 9 (appearance of impropriety); related Model Rule 5.3 (nonlawyer assistants)

Cases:

• Howton v. Morrow, 106 S.W.2d 81 (Ky. 1937), broad definition of practicing law
• Lester v. Kentucky Bar Assn, 532 S.W.2d 435 (Ky. 1975), disbarred attorney as law clerk (dicta)

Other opinions cited:

• KBA E-228 (overruled by this opinion); KBA U-14; ABA Informal Opinions 7, 1046, 1434.

See also

• KBA Ethics Op. E-336: Suspended Lawyer Serving as a Paralegal
• KBA Ethics Op. E-266: Nonlawyers Appearing in Court

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-255.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-255
Issued: November 1981

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer employ a former lawyer who is presently disbarred or under suspension to perform duties for the lawyer?

Answer:

Qualified yes.

References:

DR 3-101(A); Canon 9; KBA U-14; SCR 3.020, 3.470; ABA Informal Opinion 7, 1046, 1434; Howton v. Morrow, 106 S.W.2d 81 (Ky. 1937); Lester v. Kentucky Bar Assn, 532 S.W.2d 435 (Ky. 1975)

OPINION

The purpose of this opinion is to reconsider KBA E-228. The Ethics Committee hereby overrules and replaces KBA E-228 with the following opinion.

In Informal Opinion 7, the American Bar Association stated "an attorney should not employ a disbarred lawyer even to do only office work and see no clients, 'because of the practical difficulty of confining his activities to an area which does not include the practice of law and be cause such employment would show disrespect to the courts.'" Ethics opinions in other states are at best conflicting.

In Kentucky, the Court in Howton v. Morrow, 106 S.W.2d 81 (Ky. 1937), held that "practicing law" is not confined to performing services in actions and proceedings in courts of justice, but includes giving advice, preparing wills, contracts, deeds, mortgages, and other instruments of legal nature.

The Court in 1975, in dicta, held that a disbarred attorney may serve as a "law clerk" to an attorney, however, the court will look behind the title and examine the duties performed to determine the real nature of the work. Lester v. Kentucky Bar Assn, 532 S.W.2d 435 (Ky. 1975).

In SCR 3.020 the court defines what the practice of law is:

The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefore. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law.

Further, SCR 3.470 "Attorney Aiding Unauthorized Practice" provides:

Any attorney who knowingly aids, assists or abets in any way, form or manner any person or entity in the unauthorized practice of law shall be guilty of unprofessional conduct.

See also DR 3-101(A) which states: "A lawyer shall not aid a non-lawyer in the unauthorized practice of law." There are those in the legal profession who may argue that the best interest of the organized Bar would be served by hiring employees who have been disbarred, suspended, or have resigned from the practice of law. However, there seems to be no rule per se excluding the hiring of these individuals. It would seem that the best interest to society, as well as to the ex-lawyer, is that they should be employable within the legal system to undertake certain functions that are not the unauthorized practice of law.

Accordingly, with some trepidations, the Ethics Committee feels that the ex-lawyer can be employed with certain General Provisos, as well as Specific Provisos, as follows:

General Provisos

1. The individual may do anything a lay person could do.
2. The individual may perform such work which is of a preparatory or ministerial nature.

Specific Provisos

1. The individual may not have any contact whatsoever with a client of a lawyer.
2. The individual is not a Paralegal within SCR 3.700.
3. The individual may not have an office, or place, in the lawyer's facility.
4. The individual may perform any drafting acts, as long as they are submitted in draft form only to the responsible lawyer for approval.
5. The individual may perform clerical aspects of a probate matter.
6. The individual may do an abstract title examination.
7. The individual may provide legal research to a lawyer.

It seems clear to the Ethics Committee that an attorney who hires a suspended, disbarred, or resigned attorney does so at the attorney's own risk. If the previous lawyer engages in any unauthorized practice, the lawyer employing that person will be guilty of unprofessional conduct and will be appropriately disciplined by the Supreme Court of Kentucky.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.