May an Oklahoma lawyer employ a suspended or disbarred former lawyer in the law office, and what duties may that person perform?

Plain-English summary

The committee was asked whether an Oklahoma attorney may employ in the law office an individual formerly licensed in Oklahoma but presently suspended or disbarred, and if so, what duties that person may perform. It began from Canon 3, which imposes an affirmative duty on lawyers to assist in preventing the unauthorized practice of law, and noted that employing a suspended or disbarred lawyer creates the opportunity for that person to continue practicing law, a possibility that exists whether or not the person is employed in a law office, so the employing attorney undertakes a serious responsibility under Canon 3.

The committee concluded that it is not ethically improper or in any manner illegal for a licensed attorney to employ such an individual. However, Ethical Consideration 3-6 sets the limits of the activities the former lawyer may conduct as an employee: the attorney-client relationship must always be between the licensed attorney and the client, and the licensed attorney must in fact perform the functions that constitute the practice of law in an office where non-lawyer personnel are employed. The committee quoted EC 3-5 for the proposition that the practice of law is not reducible to a single definition but functionally relates to rendering services for others that call for the professional judgment of a lawyer, and emphasized that the judgment exercised in handling specific legal matters must be that of the licensed practitioner, who must accept and exercise complete responsibility for all actions in the office that constitute the practice of law.

The committee cited R.J. Edwards, Inc. v. Hert, 504 P.2d 407 (Okla. 1972), which addressed what constitutes the practice of law (there holding that municipal-bond marketers using forms and procedures prescribed by the Attorney General did not engage in the unauthorized practice of law), and noted that whether particular conduct amounts to the practice of law is a factual question in each case.

In practice

Under this opinion, a firm may employ a suspended or disbarred lawyer, but only in the capacity of a non-lawyer employee. Per the opinion, the controlling limits are EC 3-6: the attorney-client relationship must stay between the licensed attorney and the client, and the licensed attorney must personally perform, and take complete responsibility for, the functions that constitute the practice of law. The committee framed the employing attorney's obligation through Canon 3's affirmative duty to help prevent the unauthorized practice of law, and noted that whether specific conduct is the practice of law is a factual question.

Currency note

This opinion was issued in 1978 under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The rules on assisting the unauthorized practice of law and on the responsibilities for non-lawyer assistants have since been recast (compare Model Rules 5.3 and 5.5), and many jurisdictions have since adopted specific rules or guidance on employing disbarred or suspended lawyers. 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 an Oklahoma lawyer hire a disbarred or suspended lawyer at all?

A: Yes. The committee concluded it is not ethically improper or illegal to employ such an individual in the law office.

Q: What work can the suspended or disbarred person do?

A: Only the functions permitted of any non-lawyer employee under EC 3-6. The attorney-client relationship must remain between the licensed attorney and the client, and the licensed attorney must perform the functions that constitute the practice of law.

Q: Who is responsible for the legal work?

A: The licensed practitioner. The committee held the judgment in handling specific legal matters must be that of the licensed practitioner, who must accept and exercise complete responsibility for all actions in the office that constitute the practice of law.

Background and rules framework

The opinion applied Canon 3 of the Code of Professional Responsibility (the duty to help prevent the unauthorized practice of law), with Ethical Considerations 3-5 (the functional description of the practice of law) and 3-6 (delegation to non-lawyer employees), and cited R.J. Edwards, Inc. v. Hert, 504 P.2d 407 (Okla. 1972). It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 3 (Code of Professional Responsibility): a lawyer should assist in preventing the unauthorized practice of law.
• EC 3-5 (Code of Professional Responsibility): the practice of law functionally relates to services calling for the professional judgment of a lawyer.
• EC 3-6 (Code of Professional Responsibility): a lawyer may delegate tasks to non-lawyer employees if the lawyer maintains the relationship with the client and supervises the work.

Cases:

• R.J. Edwards, Inc. v. Hert, 504 P.2d 407 (Okla. 1972).

See also

• Okla. Bar Ethics Op. 117: A non-lawyer handling a case and signing a lawyer's name
• Okla. Bar Ethics Op. 11: What constitutes the practice of law
• Okla. Bar Ethics Op. 1: A corporate legal department practicing law

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-293/

Original opinion text

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

Adopted May 20, 1978

INQUIRY

Is it proper for an attorney in Oklahoma to employ in his law office an individual who was formerly a licensed attorney in the State of Oklahoma, but is presently suspended from the practice of law or who has been disbarred? If it is proper for an attorney to employ such an individual, what duties can the suspended or disbarred attorney perform while engaged in such employment?

OPINION

The Code of Professional Responsibility, Canon 3, imposes an affirmative duty upon lawyers to assist in preventing the unauthorized practice of law.

It is apparent from a consideration of Canon 3 of the Code of Professional Responsibility that an attorney who employs a suspended or disbarred lawyer to work in the law office of the practicing attorney undertakes a course of conduct which offers the opportunity for the disbarred or suspended attorney to continue to engage in the practice of law. The same possibility, of course, exists without regard to whether or not the suspended or disbarred attorney is employed in a law office by a licensed practitioner.

This circumstance is mentioned by the Committee only to point out to a licensed attorney the serious responsibility which he undertakes by reason of Canon 3 when a suspended or disbarred attorney is employed to work for the licensed practitioner.

The Committee is of the opinion that it is not ethically improper or in any manner illegal for a licensed attorney to employ in his law office an individual who was formerly a licensed attorney but who has been suspended or disbarred from the practice of law. However, Ethical Consideration 3_6, Code of Professional Responsibility, clearly states the limits of the activities which the former lawyer may properly conduct as an employee of the practicing attorney. The relationship of attorney-client must always be between the licensed attorney and the client. The licensed attorney must in fact perform those functions which constitute the “practice of law” in an office where non-lawyer personnel are employed. Ethical Consideration 3-6, Code of Professional Responsibility.

Ethical Consideration 3-5, Code of Professional Responsibility, wisely provides that “it is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to rendition of services for others that call for the professional judgment of a lawyer.”

The judgment to be exercised in the handling of specific legal matters is necessarily the judgment of the licensed practitioner. The licensed practitioner must accept and exercise complete responsibility for all actions performed within his office which constitute the “practice of law.”

The case of R.J. Edwards, Inc., et al., v. Hert, et al., 504 P.2d 407 (Okla., 1972) deals with the question of what constitutes the “practice of law” in the State of Oklahoma. This decision considered and determined whether certain specific types of conduct engaged in by municipal bond marketers and their agents in assisting the officials of governmental entities to authorize and market bonds amounted to the unauthorized practice of law. Since, in effect, the bond marketing companies and their agents merely utilize forms and procedures prescribed by the Attorney General, who in law was the Attorney for the governmental entities, the Court concluded that the challenged conduct did not amount to the unauthorized practice of law. The question of whether or not particular conduct amounts to the practice of law is clearly a factual question in each case:

“It will be necessary for cases in the future to fully develop the facts in order to determine if the conduct of a particular business constitutes an enjoinable practice of law.” Ibid. at 419.