Can an Oregon lawyer employ a suspended or disbarred lawyer to do work that nonlawyers may lawfully perform?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer wishes to employ suspended or disbarred lawyers to assist with functions that do not include giving legal advice and that may lawfully be performed by nonlawyers, such as the work of legal assistants or law clerks. The question is whether the lawyer may do so.
The opinion concludes yes, qualified. It applies Oregon RPC 5.5(a), which bars a lawyer from practicing law in violation of the regulation of the profession or assisting another in doing so, and notes RPC 5.4(a)'s bar on sharing legal fees with a nonlawyer. The opinion states that suspended or disbarred lawyers may not practice law and may not receive a share or percentage of legal fees earned by the lawyer on any specific case, but that this does not preclude other forms of compensation.
The opinion contrasts Application of Kraus (refusing to reinstate a suspended lawyer who continued to practice law during suspension) with State ex rel. Oregon State Bar v. Lenske (dismissing contempt proceedings where a suspended lawyer's client discussions and document drafting were supervised and approved by licensed lawyers), illustrating the line between assisting permitted work and aiding the practice of law.
In practice
Under the Oregon rules as they stood at the time of the opinion, RPC 5.5(a) permitted a lawyer to employ a suspended or disbarred lawyer for tasks nonlawyers may lawfully perform, while RPC 5.4(a) barred sharing legal fees with that person. The opinion holds that the employee may be compensated by means other than a share or percentage of legal fees on a specific case, and may not engage in the practice of law.
Common questions
Q: Can a lawyer hire a suspended or disbarred lawyer at all?
A: Yes, qualified. The opinion concludes the lawyer may employ them for functions that nonlawyers may lawfully perform under RPC 5.5(a).
Q: Can a suspended or disbarred lawyer be paid a percentage of case fees?
A: No. The opinion concludes they may not receive a share or percentage of legal fees earned on a specific case, but other forms of compensation are not precluded.
Q: What may a suspended or disbarred lawyer not do?
A: The opinion concludes they may not practice law; the Lenske contrast shows permitted tasks must be supervised and approved by licensed lawyers.
Background and rules framework
The opinion interprets Oregon RPC 5.5(a) (a lawyer shall not practice law in violation of the regulation of the profession or assist another in doing so) and RPC 5.4(a) (no sharing of legal fees with a nonlawyer). These track Model Rules 5.5 and 5.4.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 5.5(a) / Model Rule 5.5 (unauthorized practice; assisting another)
- Oregon RPC 5.4(a) / Model Rule 5.4 (sharing legal fees with a nonlawyer)
Statutes:
- ORS 9.160 to 9.166 (practice of law)
Cases:
- Application of Kraus, 295 Or 743, 670 P2d 1012 (1983)
- State ex rel. Oregon State Bar v. Lenske, 284 Or 23, 584 P2d 759 (1978)
- In re Koliha, 330 Or 402, 9 P3d 102 (2000)
See also
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-24.pdf
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