When a Virginia lawyer's license is suspended or revoked, which firms can employ that lawyer, in what roles, and can the lawyer run a non-legal business that serves law firms?

Plain-English summary

The opinion works through a hypothetical involving Attorney C, who practiced at one firm during the years when the underlying misconduct occurred (1995), later moved to and resigned from a second firm, and was then convicted of a felony based on that 1995 conduct. Attorney C anticipates suspension or revocation and asks how far he may be involved with his former firms and other firms, and whether he may own and operate a non-legal project-management and business-management company that contracts with law firms. The controlling rules are Rule 5.5(a) and (b).

On the first question, the committee concludes that the trigger for the employment prohibition in Rule 5.5(a) is "the date of the acts which resulted in suspension or revocation," meaning the date of the alleged misconduct (here, 1995), not the date of the felony conviction and not the date the Disciplinary Board acts. A firm with which the lawyer was associated on or after that date may not employ the disciplined lawyer in any capacity. The committee notes that the actual determination of that date is a factual and legal question outside its purview.

On the second question, the committee reads Rule 5.5(b) to cover a firm not subject to the 5.5(a) hiring bar. Such a firm may employ the disciplined lawyer as a "consultant, law clerk, or legal assistant" (or in any position whose work is typically performed by those roles), but it may then not represent any former client of the disciplined lawyer or his former firm. Conversely, the firm may employ the lawyer in a different capacity (the opinion gives bookkeeper, receptionist, or office manager as examples) and continue to represent those former clients. On the third question, relying on LEOs 1260 and 1491, the committee concludes that the disciplined lawyer cannot be associated with or employed by a company that provides services to a firm barred from hiring him (here, Dell & Edwards), but nothing prohibits him from owning or working for an entity that provides non-legal services to other firms or companies.

In practice

Under the Virginia rule as it stood when the opinion issued, the committee holds that Rule 5.5(a)'s employment bar runs from the date of the acts that resulted in the discipline, not the conviction date or the date of the bar's action, and that a firm associated with the lawyer on or after that date cannot employ the lawyer in any capacity. It holds that an unaffiliated firm may employ the disciplined lawyer as a consultant, law clerk, or legal assistant (or equivalent role) only if it does not then represent the lawyer's former clients, while a non-clerk role (bookkeeper, receptionist, office manager) leaves the firm free to represent those clients. On the non-legal business question, the opinion holds that the disciplined lawyer may own or work for a company providing non-legal services to other firms, but not one that provides services to a firm barred from hiring him. The opinion notes that pinning down "the date of the acts" in a given case is a factual and legal determination beyond the committee's purview.

Common questions

Q: What date starts the clock on the Rule 5.5(a) employment bar, the misconduct, the conviction, or the bar's discipline?

A: The opinion concludes the trigger is the date of the acts that resulted in suspension or revocation, that is, the date of the alleged misconduct, not the date of the felony conviction and not the date the Disciplinary Board suspends or revokes the license.

Q: Can a firm that the disciplined lawyer once worked for hire him back as a paralegal during the suspension?

A: No, if the firm was associated with the lawyer on or after the date of the misconduct. The opinion concludes Rule 5.5(a) bars that firm from employing the disciplined lawyer "in any capacity" during the suspension or revocation.

Q: Can an unrelated firm employ the suspended lawyer as a law clerk?

A: Yes, but with a tradeoff. The opinion concludes a firm not subject to the 5.5(a) bar may employ the lawyer as a consultant, law clerk, or legal assistant, but it may not then represent any former client of the disciplined lawyer or his former firm; employing him in a non-clerk role instead leaves the firm free to represent those clients.

Q: Can the suspended lawyer run a non-legal business that contracts with law firms?

A: Partly. The opinion concludes the lawyer cannot be associated with or employed by a company that provides services to a firm barred from hiring him, but he may own or work for an entity providing non-legal services to other law firms or companies.

Background and rules framework

The opinion interprets Rule 5.5(a) and (b) of the Virginia Rules of Professional Conduct (Model Rule 5.5 area; the Virginia provisions derive from former DR 3-101). Rule 5.5(a) bars a lawyer, firm, or professional corporation from employing in any capacity a lawyer whose license is suspended or revoked for professional misconduct, during the period of suspension or revocation, if the disciplined lawyer was associated with that firm at any time on or after the date of the acts that resulted in the discipline. Rule 5.5(b) addresses a firm that employs the disciplined lawyer as a consultant, law clerk, or legal assistant, barring it from representing clients the disciplined lawyer or his prior firms represented. The committee relies on prior opinions LEOs 1260, 1491, and 1514 in applying these rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / Va. Rule 5.5(a), (b) (employment of suspended or revoked lawyers; former DR 3-101)

Other opinions cited:

• Va. LEO 1260: a firm cannot retain a company whose principal is its former disbarred partner to provide services to the firm
• Va. LEO 1491: sporadic referrals plus a sublease did not put a lawyer in "association" with a firm
• Va. LEO 1514: functions that a suspended lawyer performing them would violate Rule 5.5(b)

See also

• VSB Ethics Op. 1856: Scope of Practice for a Foreign Lawyer in Virginia

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1852.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1852

EMPLOYMENT LIMITATIONS FOR
SUSPENDED/REVOKED LAWYERS.

In this hypothetical, Attorney C was a partner with Abbott, Booth & Costello from 1990
through 2000. Attorney C formed a new law firm in 2000, Costello, Dell & Edwards. Attorney
C resigned from Costello, Dell & Edwards on May 15, 2007, which is now Dell & Edwards. On
May 15, 2007, Attorney C was convicted of a felony for alleged actions taken on behalf of a
client while employed by Abbot, Booth & Costello in 1995. As of yet, Attorney C has not been
contacted by the Virginia State Bar and still holds a valid Virginia State Bar license. Attorney C
assumes his license will be suspended or revoked in the future and seeks advice on the
permissible extent of his involvement with both former firms and other law firms, such as
Xander, Young & Zimmer, where there has been no past association by Attorney C. Attorney C
also seeks advice on his ability to own and operate a company that provides non-legal project
management and business management services and whether the entity can enter into contracts
and provide services to his former law firm and/or any other lawyers, law firms or professional
corporations.
QUESTIONS PRESENTED
1) Which of these dates triggers the employment prohibition in Rule 5.5(a): (i) the date of
the alleged acts which resulted in a felony conviction; (ii) the date of the felony
conviction; or (iii) the date of suspension or revocation by the Virginia State Bar? More
specifically, does Rule 5.5(a) prohibit Dell & Edwards from employing Attorney C
during the term of Attorney C’s suspension or revocation?
2) Does Rule 5.5(b) prohibit Xander, Young & Zimmer from employing Attorney C in a
capacity other than “consultant, law clerk or legal assistant” and can the firm permissibly
undertake the representation of former clients of Attorney C during the term of his
suspension or revocation?
3) Is Attorney C prohibited from owning and operating, or simply being employed by,
Costello Management, LLC, an entity created to provide non-legal project management
and business management services? Can the entity enter into contracts and provide
services to either Attorney C’s former law firm and/or any other lawyers, law firms or
professional corporations?
APPLICABLE RULES & OPINIONS
The appropriate and controlling rules relative to this hypothetical are Rules 5.5(a) and (b).1
Also pertinent to the Committee’s analysis are LEOs 1260, 1490 and 1514.
ANALYSIS OF THE QUESTIONS PRESENTED
1

Rule 5.5. Unauthorized Practice Of Law; Multijurisdictional Practice of Law.
(a) A lawyer, law firm or professional corporation shall not employ in any capacity a lawyer whose license
has been suspended or revoked for professional misconduct, during such period of suspension or
revocation, if the disciplined lawyer was associated with such lawyer, law firm, or professional corporation
at any time on or after the date of the acts which resulted in suspension or revocation.
(b) A lawyer, law firm or professional corporation employing a lawyer as a consultant, law clerk, or legal
assistant when that lawyer’s license is suspended or revoked for professional misconduct shall not represent
any client represented by the disciplined lawyer or by any lawyer with whom the disciplined lawyer
practiced on or after the date of the acts which resulted in suspension or revocation.

In answering the first question, the propriety of Attorney C’s employment by Dell & Edwards
is dependent upon the determination of the “date of the acts which resulted in suspension or
revocation.” In your hypothetical, the alleged acts which resulted in suspension or revocation are
actions or omissions that occurred in the course of Attorney C representing the client in 1995 that
led to the felony conviction. Assuming this is correct and applying the “date of the acts which
resulted in suspension or revocation,” i.e., 1995, Attorney C may not be employed in any
capacity by either of Attorney C’s former law firms. In other words, the trigger date for the
employment prohibition in Rule 5.5(a) is really the date of the alleged misconduct resulting in
suspension or revocation of the lawyer’s license, not the date of the felony conviction nor the
date that the Disciplinary Board suspends or revokes Attorney C’s license. The actual
determination, however, of the “date of the acts which resulted in suspension or revocation” is
both a factual and legal determination outside the purview of this Committee.
As to your second question, Rule 5.5(a) is precise in its prohibition of Attorney C working “in
any capacity” for a firm he had previously been associated with “at any time on or after the date
of the acts which resulted in a suspension or revocation.” Further, Rule 5.5(b) provides
restrictions regarding the representation of Attorney C’s former clients where Attorney C is
employed as a “consultant, law clerk or legal assistant.” The prohibition in this rule clearly bars
Attorney C’s employment as a “consultant, law clerk, or legal assistant,” but is silent about
employment in other capacities in a law firm, i.e., bookkeeper, receptionist or office manager.
The Committee opines that Xander, Young & Zimmer may employ Attorney C in the capacities
specifically listed in Rule 5.5(b) as well as in any position or title, regardless of name, if the
work is typically performed by a “consultant, law clerk or legal assistant;” however, the firm
then may not represent any former client of Attorney C or his former law firm.2 Conversely, it
would be permissible under Rule 5.5(b) for Xander, Young & Zimmer to employ Attorney C in
any other capacity except as a “consultant, law clerk or legal assistant” and continue to represent
former clients of Attorney C or his former law firm.
In response to question three, this Committee opined in LEO 1260 that Rule 5.5(a) (DR:3101(B)) would act as a bar to a law firm’s retention of an adjusting firm where the firm’s former
disbarred partner was “the Chief Executive Officer providing administrative services to the
insurance adjusting company and the specific employee who would provide to the law firm the
services as described…. The Committee is of the view that the rule expressly prohibits former
attorney ‘X’ from rendering any services to the two attorneys who are currently principals in the
law firm of A, B, and C but who were formerly associated in the law firm which was founded by
former attorney ‘X.’” LEO 1260.
In LEO 1491, however, the Committee opined that a lawyer who only provided sporadic
referrals to a law firm, together with a sublease arrangement, was not in “association” with the
law firm as to prohibit the lawyer from later working for the law firm or owning an interest in a
title company that provides non-legal services to clients of the law firm. Consequently, relying
on the analysis in these former opinions, Attorney C cannot be associated or employed in any
capacity with a company that provides services to Dell & Edwards; however, nothing would
prohibit Attorney C from owning or being employed by an entity that provided non-legal
services to any other law firm or company.
CONCLUSION
2

See LEO 1514. The Committee enumerated various functions that if performed by a suspended lawyer would be a
violation of Rule 5.5(b) (DR:3-101(C)), which include: clerical duties involved in the preparation of Warrants,
Garnishments, pleadings and other legal papers; communications with personnel in various Clerk’s Offices;
communication with personnel employed by collection clients; routine duties normally associated with debt
collection; routine accounts of money collection on behalf of collection clients; and calculation of fees and
preparation of bills.

Rule 5.5(a)’s language “the date of the acts which resulted in suspension or revocation” means
the date of the alleged misconduct or acts upon which the lawyer’s suspension or revocation is
based. Determination of the actual date is both a factual and legal determination made by a
disciplinary tribunal and beyond the Committee’s purview.
A law firm may not employ in any capacity a suspended or revoked lawyer if the disciplined
lawyer was associated with that firm on or after the dates of the acts which resulted in suspension
or revocation. A law firm not subject to the hiring prohibition in Rule 5.5 (a) may hire the
disciplined lawyer as a consultant, law clerk or legal assistant provided the hiring firm does not
then represent any former or current clients of the disciplined lawyer or clients of the lawyers or
law firms prohibited from hiring the disciplined lawyer in any capacity.
Further, nothing would prohibit the suspended or disbarred lawyer from owning or being
employed by a business providing non-legal services as long as that business is not employed by
one of the lawyer’s former law firms.
This opinion is advisory only and not binding on any court or tribunal.
Committee Opinion
December 9, 2009