Can a law firm employ a disbarred lawyer as a paralegal, and can it keep representing clients connected to that lawyer's former firm?

Plain-English summary

The opinion addressed when a law firm may employ a disbarred lawyer as a paralegal and whether doing so limits which clients the firm can serve. It applied the then-current Rule 5.5(d), which barred a firm employing a disbarred lawyer as a law clerk or legal assistant from representing any client who had been represented by the disbarred lawyer, or by a lawyer with whom he practiced, during the period from the misconduct through the effective date of disbarment.

In the first scenario, a firm wanted to hire a disbarred lawyer as a paralegal while continuing to serve former clients of his old firm who had already come to the hiring firm before he was hired. The opinion concluded this was permissible, treating it as fortuitous that those clients arrived before the hiring, provided the clients understood the disbarred lawyer was acting only as a paralegal and the firm accepted no new clients of the old firm from the misconduct period after the hiring. The opinion concluded the firm could not serve former clients of the old firm who came to the firm after the disbarred lawyer was hired, and that screening the disbarred lawyer from those matters did not change the result.

In a separate scenario, a lawyer wanted to employ his own disbarred former law partner (the disbarment arose from a failure to supervise within their firm) as a paralegal. The opinion concluded Rule 5.5(c) barred this, because employing a disbarred lawyer as a non-lawyer in his former office setting, among the same staff and clients, made it practically impossible to confine him to non-legal work.

Currency note

This opinion was issued in 1998, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rule numbering then in effect (the relevant provisions were then Rule 5.5(c) and Rule 5.5(d)). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a firm hire a disbarred lawyer as a paralegal?

A: Yes, but with a limit. The opinion concluded a firm could employ a disbarred lawyer as a paralegal only if, after the hiring, it accepted no new clients who had been clients of the disbarred lawyer's former firm during the period of his misconduct.

Q: Did it matter when the former firm's clients came to the hiring firm?

A: Yes. The opinion concluded the firm could keep serving former-firm clients who arrived before the disbarred lawyer was hired, but not those who came after; screening the disbarred lawyer from the latter matters did not cure the problem.

Q: Could a disbarred lawyer be hired by the firm where he had practiced as a lawyer?

A: No. The opinion concluded Rule 5.5(c) barred a firm from employing as a paralegal a disbarred lawyer who had been associated with that firm during the period of the acts that led to his disbarment.

Background and rules framework

At the time, the opinion applied North Carolina's Rule 5.5(c) and Rule 5.5(d), which governed the employment of disbarred and suspended lawyers as law clerks or legal assistants, together with the Comments addressing supervision of a disbarred lawyer. In current numbering the subject matter corresponds to Model Rule 5.5 (unauthorized practice of law) and Model Rule 5.3 (responsibilities regarding nonlawyer assistance).

Citations and references

Rules of Professional Conduct:

• N.C. Rule 5.5(c) and 5.5(d) (then in effect): employment of disbarred or suspended lawyers
• Current counterparts: Model Rule 5.5 (unauthorized practice of law); Model Rule 5.3 (nonlawyer assistance)

See also

• Alabama Ethics Op. 1990-02: Disbarred Lawyer's Compensation
• ABA Formal Op. 506: Nonlawyer Assistants

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/98-formal-ethics-opinion-7/

Original opinion text

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

Inquiry #1:

Attorney A, a lawyer with ABC Law Firm, reported his professional misconduct to the North Carolina State Bar and voluntarily ceased the practice of law. The professional misconduct occurred while Attorney A was a member of ABC Law Firm. Approximately eighteen months later, after a complaint was filed with the Disciplinary Hearing Commission (DHC), Attorney A submitted to disbarment and surrendered his license. The DHC entered an order of disbarment effective as of the date Attorney A ceased the practice of law eighteen months earlier. Since the time that Attorney A discontinued the practice of law eighteen months ago, some of the people who were clients of ABC Law Firm when Attorney A practiced with the firm and engaged in professional misconduct ("former ABC clients") have sought legal representation from other law firms in the community. XYZ Law Firm has provided legal services to some former ABC clients and continues to be called upon to perform legal services for some former ABC clients. XYZ Law Firm proposed to employ Former Attorney A as a paralegal. May XYZ employ Former Attorney A as a paralegal, and continue to perform occasional legal services for former ABC clients if the clients first came to XYZ Law Firm for legal services prior to the employment of Former Attorney A as a paralegal?

Opinion #1:

Rule 5.5 (d) of the Revised Rules of Professional Conduct provides:

A lawyer or law firm employing a disbarred or suspended lawyer as a law clerk or legal assistant shall not represent any client represented by the disbarred or suspended lawyer or by any lawyer with whom the disbarred or suspended lawyer practiced during the period on or after the date of the acts which resulted in disbarment or suspension through and including the effective date of disbarment or suspension.

When a disbarred lawyer is employed by another law firm, the disbarred lawyer may attract clients from his former practice to the hiring law firm. As a consequence, it may be difficult for the disbarred lawyer to avoid the unauthorized practice of law with respect to these former clients. More problematic, however, is the possibility that the hiring law firm may be in collusion with the disbarred lawyer to employ the disbarred lawyer in exchange for the disbarred lawyer's delivery of his former clients to the hiring firm. If so, the firm is showing disrespect for the decision of the DHC and is encouraging unauthorized practice by the disbarred lawyer.

In the present situation, however, it is merely fortuitous that former clients of ABC Law Firm sought the legal services of XYZ Law Firm during the period prior to the employment of Former Attorney A as a paralegal. Therefore, provided all clients of XYZ Law Firm fully understand that the disbarred lawyer is not acting as an attorney but merely as a paralegal, and, provided further, that, after the employment of Former Attorney A, XYZ Law Firm accepts no new clients who were clients of ABC Law Firm during the period of Former Attorney A's misconduct, XYZ Law Firm may employ him as a paralegal. Care should also be taken to follow the recommendations in Comment [2] to Rule 5.5 relative to the supervision of a disbarred lawyer and related matters.

Inquiry #2:

May XYZ Law Firm employ Former Attorney A as a paralegal and perform legal services for former ABC clients if the clients come to XYZ Law Firm subsequent to the employment of Former Attorney A?

Opinion #2:

No. See opinion #1 above.

Inquiry #3:

If the answer to inquiry #1 or inquiry #2 is "no", would the answer change if XYZ Law Firm agrees to screen Former Attorney A from participation as a paralegal in the legal services provided to the former ABC clients?

Opinion #3:

No.

Inquiry #4:

Former Attorney B was disbarred following a hearing before the DHC. In its order of disbarment, the DHC found, among other things, that Former Attorney B engaged in unethical conduct by failing to supervise an employee for a period of approximately three months during a time when he was a partner in a law firm with his father, Attorney C. As a result of his failure to supervise, the employee misappropriated funds from the firm trust account.

May Attorney C employ Former Attorney B as a paralegal, law clerk, or some capacity other than a lawyer?

Opinion #4:

No. Rule 5.5(c) provides:

A lawyer or law firm shall not employ a disbarred or suspended lawyer as a law clerk or legal assistant if that individual was associated with such lawyer or law firm at any time on or after the date of the acts which resulted in disbarment or suspension through and including the effective date of disbarment or suspension.

The rule was adopted to prevent a disbarred lawyer from continuing to practice law as if no order of disbarment was entered. In Comment [3] to the rule, it is observed that it would be "practically impossible for the disciplined lawyer to confine himself or herself to activities not involving the actual practice of law if he or she were employed in his or her former office setting and obliged to deal with the same staff and clientele."

This inquiry is different from the preceding inquiries because the disbarred lawyer is proposing to work as a non-lawyer at a firm where he formerly worked as a lawyer. Under these circumstances, the existing relationships with staff and clients are more likely to undermine the prohibition on the unauthorized practice of law by the disbarred lawyer. Therefore, Attorney C may not employ Former Attorney B.