Can a lawyer in good standing employ a disbarred or suspended attorney to work in the law office?
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This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
An attorney in good standing wanted to hire a disbarred lawyer to work in her office and asked what work, if any, he could permissibly perform. The opinion analyzed the question under DR 3-101(A) ("A lawyer shall not aid a non-lawyer in the unauthorized practice of law") together with DR 1-102(A)(4) and the Judiciary Law provisions (sections 478, 486, and 90(2)) that bar a disbarred or suspended attorney from practicing "in any form, either as principal or as agent, clerk or employee." It noted that a suspended or disbarred attorney holds approximately the same status as one never admitted.
The Committee surveyed prior authority, including the New York County Lawyers' Association's view (Opinion 666) that employing a disbarred lawyer in any capacity related to the practice of law is improper because of the danger that the public or other lawyers will be misled about his status. It agreed it is clearly impermissible to have a disbarred lawyer conduct depositions or attend closings, and added that employing a disbarred lawyer is fraught with ethical peril even for activities nonlawyers may perform, because courts may scrutinize such activities and find they pose greater risk when done by a disbarred lawyer. It cataloged Appellate Division decisions disciplining attorneys who let disbarred or suspended lawyers prepare contracts, appear in proceedings, hold themselves out as attorneys, or act as law clerks, while noting that a few "law-related" activities (such as running a calendar-watching service, per Rosenbluth, or writing a law-related article, per Rowe) have been permitted.
The Committee concluded that whether a specific activity is the unauthorized practice of law is itself a question of law for the Appellate Division, which may be resolved on motion in a particular case. It declined to decide, for example, whether a disbarred lawyer might ever act as a paralegal while genuinely refraining from the practice of law.
Currency note
This opinion was issued in 1998, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. 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: Can a lawyer hire a disbarred or suspended attorney to work in the law office?
A: The opinion concluded it is clearly improper to employ a disbarred or suspended attorney in any capacity related to the practice of law.
Q: Can the disbarred lawyer at least do tasks like conducting depositions or attending closings?
A: No. The opinion concluded it is clearly impermissible for a disbarred lawyer to conduct depositions or attend closings on the attorney's behalf, treating that as aiding the unauthorized practice of law under DR 3-101(A).
Q: Who decides whether a particular task is the unauthorized practice of law?
A: The opinion stated that what acts constitute the unauthorized practice of law is a question of law for the Appellate Division, which can be resolved by motion in a specific case, not by an ethics committee.
Q: Were any law-related activities recognized as permissible for a disbarred lawyer?
A: The opinion noted that some courts had permitted limited "law-related" activities, citing Matter of Rosenbluth (a calendar-watching service) and Matter of Rowe (writing a law-related article), but it stressed that employment in the law office itself remained improper.
Background and rules framework
The opinion interpreted New York's then-governing DR 3-101(A) (aiding a non-lawyer in the unauthorized practice of law, the analog of Model Rule 5.5) and DR 1-102(A)(4) (conduct prejudicial to the administration of justice, the analog of Model Rule 8.4(d)), alongside EC 3-6 on the delegation of tasks to lay assistants (the concern now addressed by Model Rule 5.3). It read these together with the Judiciary Law's bar on practice by disbarred or suspended attorneys.
Citations and references
Rules of Professional Conduct (then in effect):
- DR 3-101(A) (aiding unauthorized practice; analog of Model Rule 5.5)
- DR 1-102(A)(4) (conduct prejudicial to the administration of justice; analog of Model Rule 8.4(d))
- EC 3-6 (delegation to lay assistants; concern of Model Rule 5.3)
Statutes:
- New York Judiciary Law sections 478, 486, 90(2) (practice by disbarred or suspended attorneys)
Cases:
- Matter of Rosenbluth, 36 A.D.2d 383 (1st Dep't 1971), permissible law-related activity
- Matter of Rowe, 80 N.Y.2d 366 (1992), defining the practice of law
See also
- ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
- ISBA Ethics Op. 02-04: Negotiating an Out-of-State Claim Without Local Counsel
Source
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