OHBPC December 5, 2008

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

Short answer: The opinion concluded that a lawyer or firm may employ a disbarred, resigned-with-discipline-pending, or suspended attorney only under the conditions of Gov. Bar R. V(8)(G) and (H): the firm must register the relationship with the Office of Disciplinary Counsel and wait for written confirmation, must notify clients before the person works on their matters, and the employed attorney may have no direct client contact (beyond observing) and may not handle client trust funds. This opinion was withdrawn by Opinion 2021-09.

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This page answers the general question as of 2008. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Currency note

The Ohio Board of Professional Conduct flagged this opinion as Withdrawn by Opinion 2021-09, issued October 1, 2021. The opinion also turned on a version of the governing bar rule (Gov. Bar R. V) that has since been renumbered and amended. Treat this page as historical context, not current guidance, and verify against the current Rules for the Government of the Bar of Ohio and Opinion 2021-09 before relying on any specific requirement, deadline, or form described here.

Plain-English summary

The Board addressed whether a lawyer or law firm may employ an attorney who is disqualified (disbarred or resigned with discipline pending) or suspended from the practice of law, and what work that person may do. The Board concluded such employment was permitted, but only under the conditions in Section 8(G) and (H) of Rule V of the Supreme Court Rules for the Government of the Bar of Ohio (as amended effective September 1, 2008). The Board read "disqualified attorney" as a former attorney who has been disbarred or has resigned with discipline pending (the rule's definition), and "suspended attorney" as one under various forms of unstayed suspension.

The Board described the conditions the rule imposed on both sides of the relationship. The employing lawyer or firm had to register the employment, contractual, or consulting relationship with the Office of Disciplinary Counsel on the office's form, including the duties to be performed, the supervising attorney, and an affidavit that the attorney had read and understood the disbarment, resignation, or suspension order; the relationship could not commence until the firm received written acknowledgment from the Office of Disciplinary Counsel; and the firm had to provide written notice to every client on whose matter the person would perform work before that work began. The employed attorney could have no direct client contact other than as an observer, and could not receive, disburse, or otherwise handle client trust funds or property.

The Board drew several distinctions. A disqualified attorney could not enter a relationship with a firm with which the attorney was associated at the time of the misconduct, whereas a suspended attorney could return to a prior firm. The Board concluded that serving as a receptionist did not violate the no-direct-contact condition so long as any client communication was limited to scheduling, taking a message, or transferring a call. It also distinguished duties that did not trigger the client-notice requirement (receptionist, mail room, copying, filing pleadings) from duties that did (legal research and writing on client matters). Throughout, the person could not engage in the practice of law, and the Board directed any judge or lawyer concerned that a disqualified or suspended attorney was practicing law to the Office of Disciplinary Counsel.

Common questions

Q: Could a law firm hire a disbarred or suspended lawyer at all?

A: The opinion concluded yes, but only under the conditions of Gov. Bar R. V(8)(G) and (H), including registration with the Office of Disciplinary Counsel and written confirmation before the relationship began. (This opinion was later withdrawn by Opinion 2021-09.)

Q: Could a suspended lawyer return to the firm where the misconduct happened?

A: The opinion distinguished the two categories: a suspended attorney could enter a relationship with the firm where the misconduct occurred, but a disqualified (disbarred or resigned-with-discipline-pending) attorney could not.

Q: What work was off limits?

A: The opinion concluded the person could have no direct client contact other than as an observer and could not handle client trust funds or property, and could not engage in the practice of law.

Q: When did clients have to be told?

A: The opinion concluded written client notice was required before the disqualified or suspended attorney performed work on a client matter, such as legal research and writing, but tasks like reception, mail room, copying, or filing pleadings did not trigger the notice requirement.

Background and rules framework

This opinion interprets the Supreme Court Rules for the Government of the Bar of Ohio, specifically Gov. Bar R. V, Section 8(G) and (H) (employment of a disqualified or suspended attorney), rather than a numbered Rule of Professional Conduct. The subject matter overlaps with the Model Rules' treatment of assisting the unauthorized practice of law and the supervision of nonlawyer assistants, but the opinion's analysis rests on the governing bar rule's own text and definitions.

Citations and references

Rules of the Government of the Bar:

Gov. Bar R. V, Section 8(G)(1)-(6) and (H) (conditions on employing a disqualified or suspended attorney; definition of "disqualified attorney")
Gov. Bar R. XX(2) (registration deadline for pre-September 1, 2008 relationships)

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_08-007.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                    OFFICE OF SECRETARY




                              OPINION 2008-7
                          Issued December 5, 2008
                      Withdrawn by Adv. Op. 2021-09

SYLLABUS: A lawyer or law firm may employ an attorney who is disqualified
(disbarred or resigned with discipline pending) or suspended from the practice of
law, but only in compliance with the conditions set forth in Gov.Bar R.V(8)(G) and
(H). This governing bar rule imposes conditions upon both the employing lawyer
or law firm and the employed disqualified or suspended lawyer. An employing
lawyer or law firm must register the employment, contractual, or consulting
relationship with the Office of Disciplinary Counsel on a form provided by that
office and provide an affidavit that the employing or supervisory attorney has
read and understands the limitations of the order of disbarment, suspension, or
resignation with discipline pending. An employing lawyer or law firm must
receive written confirmation from the Office of Disciplinary Counsel before
commencing the employment relationship. An employing lawyer or law firm is
required to provide written notice to every client on whose matters the
disqualified or suspended attorney will perform work or provide services. A
disqualified attorney is not permitted to enter an employment, contractual, or
consulting relationship with a lawyer or law firm with which the disqualified
attorney was associated at the time of the misconduct which resulted in the
attorney’s disbarment or resignation with discipline pending. A suspended
attorney may enter an employment, contractual, or consulting relationship with a
law firm with which the suspended attorney was associated at the time of the
misconduct resulting in the suspension. A disqualified or suspended attorney
must have no direct client contact other than as observer at a meeting, hearing,
or interaction between an attorney or client and must not receive, disburse, or
otherwise handle client trust funds or property. A disqualified or suspended
attorney does not violate the condition of no direct client contact by serving as a
receptionist at a law firm provided that any communication with a client is limited
to scheduling an appointment, taking a message, or transferring a question or
call to the appropriate legal or non-legal staff, or other similar conduct. If a hiring
lawyer or law firm limits the duties of a disqualified or suspended attorney to
activities such as receptionist, mail room services, copying services, filing
pleadings in court, or other similar conduct, the requirement of notification to
clients would not be invoked since these activities do not directly involve
performing work or providing services on a client matter. If a hiring lawyer or law
firm expands the duties of a disqualified or suspended attorney to performing
legal research and writing on client matters, the requirement of notification to the
Op. 2008-7 2

clients is invoked since the activity involves performing work or providing services
on a client matter. A disqualified or suspended attorney must not engage in the
practice of law in Ohio and must comply with the court’s order of disbarment,
resignation with discipline pending, or suspension. A judge or a lawyer who is
concerned that a disqualified or suspended attorney is engaging in the practice of
law should direct those concerns to the Office of Disciplinary Counsel.

OPINION: This opinion addresses questions regarding employment of an
attorney who is disqualified (disbarred, or resigned with discipline pending) or
suspended from the practice of law.

  Is it proper for a lawyer or law firm to employ an attorney who is
  disqualified (disbarred, or resigned with discipline pending) from the
  practice of law? If, so what work may be performed?

Introduction

When an attorney is suspended without stay of the suspension from the practice
of law, disbarred from the practice of law, or resigned from the practice of law
with discipline pending, that attorney is no longer authorized to practice law. Yet,
these attorneys may need employment and may look to a lawyer or law firm for
such employment.

Applicable Rule

A lawyer or law firm is permitted to employ an attorney who is suspended,
disbarred, or resigned from the practice of law with discipline pending, but only
under the conditions set forth in Section 8(G) and (H) of Rule V of the Supreme
Court Rules for the Government of Ohio, as amended, effective September 1,
2008.

Gov.Bar R. V(8)(G) and (H), by its terms, applies to the employment of a
“disqualified or a suspended attorney.”

A “disqualified attorney” is defined in Gov.Bar R. V(8)(H) as “a former attorney
who has been disbarred or who has resigned with discipline pending.”

A “suspended attorney” is not defined in the rule but logically describes an
attorney who is under an unstayed disciplinary suspension, interim remedial
suspension, felony interim suspension, child support interim suspension, or
mental illness suspension imposed by the Supreme Court of Ohio pursuant to
Gov.Bar R. V, Jud. Rule II, or Jud. Rule III; a registration suspension imposed
pursuant to Gov.Bar R. VI; and or a continuing legal education suspension
pursuant to Gov.Bar R. X.
Op. 2008-7 3

                             Gov.Bar R. V (8)

          (G)(1) Employment of a Disqualified or Suspended
  Attorney. A disqualified or suspended attorney subject to division
  (G) of this rule shall not do either of the following:

         (a)   Have any direct client contact, other than serving as
  an observer in any meeting, hearing or interaction between an
  attorney and a client;

        (b)    Receive, disburse, or otherwise handle client trust
  funds or property.

         (2)    On or after September 1, 2008, a disqualified attorney
  subject to division (G) of this rule shall not enter into an
  employment, contractual, or consulting relationship with an attorney
  or law firm with which the disqualified attorney was associated as a
  partner, shareholder, member, or employee at the time the attorney
  engaged in misconduct that resulted in his or her disqualification
  from the practice of law.

         (3)     An attorney or law firm seeking to enter into an
  employment, contractual, or consulting relationship with a
  disqualified or suspended attorney shall register the employment,
  contractual, or consulting relationship with the Office of Disciplinary
  Counsel. The registration shall be on a form provided by the Office
  of Disciplinary Counsel and shall include all of the following:

        (a)     The name of and contact information for the
  disqualified or suspended attorney;

         (b)    The name of and contact information for the attorney
  or law firm seeking to enter into the relationship with the disqualified
  or suspended attorney;

          (c)     The name of and contact information for the attorney
  responsible for directly supervising the disqualified or suspended
  attorney, if different than the attorney identified in division (G)(3)(b)
  of this section;

         (d)    The capacity in which the disqualified or suspended
  attorney will be employed, including a description of duties to be
  performed or services to be provided;

         (e)    An affidavit executed by either the attorney filing the
  registration or the supervising attorney indicating that the attorney

Op. 2008-7 4

  has read the Supreme Court’s order disbarring, accepting the
  resignation of, or suspending the attorney to be employed and
  understands the limitations contained in that order;

         (f)    Any other information considered necessary by the
  Office of Disciplinary Counsel.

         (4)    Upon receipt of a completed registration form, the
  Office of Disciplinary Counsel shall send a written
  acknowledgement to the attorney or law firm that filed the
  registration form and any supervising attorney identified on the
  form.      Upon receipt of the written acknowledgement, the
  employment, contractual, or consulting relationship may
  commence.

         (5)     An attorney who registers the employment of a
  disqualified or suspended attorney shall file an amended
  registration form with the Office of Disciplinary Counsel when there
  is any material change in the information provided on a prior
  registration form and shall notify the Office of Disciplinary Counsel
  upon termination of the employment, contractual, or consulting
  relationship.

         (6)    If a disqualified or suspended attorney will perform
  work or provide services in connection with any client matter, the
  employing attorney or law firm shall inform the client of the status of
  the disqualified or suspended attorney. The notice shall be in
  writing and provided to the client before the disqualified or
  suspended attorney performs any work or provides any services in
  connection with the client matter.

         (H)   Definition. As used in this section, “disqualified
  attorney” means a former attorney who has been disbarred or who
  has resigned with discipline pending.

Distinct features of rule

An employing lawyer or law firm, as well as an employed disqualified or
suspended attorney, should give careful consideration to the distinct features of
Gov.Bar Rule V(8)(G) and (H). The rule imposes conditions upon both an
employing lawyer or law firm and the disqualified or suspended attorney who is
employed.

Under Section (8)(G)(1)(a) a disqualified or suspended attorney is not permitted
to have any direct client contact, other than as an observer in any meeting,
hearing, or interaction between an attorney and a client. Direct client contact
Op. 2008-7 5

would include communication in person, by telephone, mail, e-mail, or any other
form of communication. Nevertheless, a reasoned application of this rule does
not prohibit a disqualified or suspended attorney from serving as a receptionist
provided that any communication with a client is limited to scheduling an
appointment, taking a message, or transferring a question or call to the
appropriate legal or non-legal staff, or other similar conduct.

Under Section (8)(G)(1)(b) a disqualified or suspended attorney is not permitted
to receive, disburse, or otherwise handle client trust funds or property. Pursuant
to this restriction, a disqualified or suspended lawyer should not have any duties
related to client trust funds or property.

Under Section (8)(G)(2) a disqualified attorney is treated differently than a
suspended attorney. A disqualified attorney is not permitted to enter an
employment, contractual, or consulting relationship with a lawyer or law firm with
which the disqualified attorney was associated at the time of the misconduct
which resulted in the attorney’s disbarment or resignation with discipline pending.
A suspended attorney may return to a prior working relationship with a lawyer or
law firm even though the misconduct resulting in the suspension occurred during
the prior working relationship.

Under Section (8)(G)(3), a lawyer or law firm seeking to enter an employment,
contractual, or consulting relationship with a disqualified or suspended attorney is
required to register the relationship with the Office of Disciplinary Counsel on a
form provided by the office. The form requires, among other things, the duties to
be performed, the name of the attorney responsible for directly supervising the
disqualified or suspended attorney and an affidavit that the attorney has read and
understands the disbarment order, the resignation order, or the suspension
order. Under Section (8)(G)(5), the employing lawyer or law firm must file an
amended form when there is a material change in the information and give
notification to the Office of Disciplinary when the relationship ends. A lawyer or a
law firm that entered into an employment, contractual, or consulting relationship
with a disqualified or suspended attorney prior to September 1, 2008, is required
to register such relationship, as provided for in Gov. Bar R. V, Section 8(G)(3), no
later than November 1, 2008. Gov.Bar R. XX(2).

Under Section (8)(G)(4) the employment, contractual, or consulting relationship
between a disqualified or suspended attorney shall not commence until after the
employing lawyer or law firm receives a written acknowledgment from the Office
of Disciplinary Counsel.

Under Section (8)(G)(6) written notification of the status of a disqualified or
suspended attorney must be provided by the employing lawyer or law firm to a
client prior to commencement of a disqualified or suspended attorney’s work or
services on any client matter.
Op. 2008-7 6

Scope of employment activities of a disqualified or suspended attorney

Pursuant to Gov.Bar R.V(8)(G) and (H), a lawyer or law firm may employ a
disqualified or suspended attorney as a non-attorney employee, only if the
employment can be accomplished within the conditions of the rule including no
direct contact with any client other than as an observer at a meeting, hearing, or
interaction between an attorney or client; no handling of client trust funds or
property; provision of written notification to every client on whose matter the
disqualified or suspended attorney will perform work or provide services. The no
direct client contact condition is not violated by a disqualified or suspended
attorney serving as a receptionist provided that any communication with a client
is limited to scheduling an appointment, taking a message, or transferring a
question or call to the appropriate legal or non-legal staff, or other similar
conduct.

If a hiring lawyer or law firm limits the duties of a disqualified or suspended
attorney to activities such as receptionist, mail room services, copying services,
filing pleadings in court, or other similar conduct, the requirement of notification to
clients would not be invoked since these activities do not directly involve
performing work or providing services on a client matter.

If a hiring lawyer or law firm expands the duties of a disqualified or suspended
attorney to performing legal research and writing on client matters, the
requirement of notification to the clients is invoked since the activity involves
performing work or providing services on a client matter.

A disqualified or suspended attorney is not permitted to engage in the practice of
law in Ohio and must comply with the court’s order of disbarment, resignation
with discipline pending, or suspension. A judge or a lawyer who is concerned
that a disqualified or suspended attorney is engaging in the practice of law
should direct those concerns to the Office of Disciplinary Counsel.

Conclusion

A lawyer or law firm may employ an attorney who is disqualified (disbarred or
resigned with discipline pending) or suspended from the practice of law, but only
in compliance with the conditions set forth in Gov.Bar R.V(8)(G) and (H). This
governing bar rule imposes conditions upon both the employing lawyer or law
firm and the employed disqualified or suspended lawyer. An employing lawyer or
law firm must register the employment, contractual, or consulting relationship
with the Office of Disciplinary Counsel on a form provided by that office and
provide an affidavit that the employing or supervisory attorney has read and
understands the limitations of the order of disbarment, suspension, or resignation
with discipline pending. An employing lawyer or law firm must receive written
confirmation from the Office of Disciplinary Counsel before commencing the
Op. 2008-7 7

employment relationship. An employing lawyer or law firm is required to provide
written notice to every client on whose matters the disqualified or suspended
attorney will perform work or provide services. A disqualified attorney is not
permitted to enter an employment, contractual, or consulting relationship with a
lawyer or law firm with which the disqualified attorney was associated at the time
of the misconduct which resulted in the attorney’s disbarment or resignation with
discipline pending. A suspended attorney may enter an employment,
contractual, or consulting relationship with a law firm with which the suspended
attorney was associated at the time of the misconduct resulting in the
suspension. A disqualified or suspended attorney must have no direct client
contact other than as observer at a meeting, hearing, or interaction between an
attorney or client and must not receive, disburse, or otherwise handle client trust
funds or property. A disqualified or suspended attorney does not violate the
condition of no direct client contact by serving as a receptionist at a law firm
provided that any communication with a client is limited to scheduling an
appointment, taking a message, or transferring a question or call to the
appropriate legal or non-legal staff, or other similar conduct. If a hiring lawyer or
law firm limits the duties of a disqualified or suspended attorney to activities such
as receptionist, mail room services, copying services, filing pleadings in court, or
other similar conduct, the requirement of notification to clients would not be
invoked since these activities do not directly involve performing work or providing
services on a client matter. If a hiring lawyer or law firm expands the duties of a
disqualified or suspended attorney to performing legal research and writing on
client matters, the requirement of notification to the clients is invoked since the
activity involves performing work or providing services on a client matter. A
disqualified or suspended attorney must not engage in the practice of law in Ohio
and must comply with the court’s order of disbarment, resignation with discipline
pending, or suspension. A judge or a lawyer who is concerned that a disqualified
or suspended attorney is engaging in the practice of law should direct those
concerns to the Office of Disciplinary Counsel.

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective
or hypothetical questions regarding the application of the Supreme Court
Rules for the Government of the Bar of Ohio, the Supreme Court Rules for
the Government of the Judiciary, the Ohio Rules of Professional Conduct,
the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

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