Ethics Opinion No. 319
TOPIC: Whether certain tasks delegated to a disbarred lawyer constitutes the unauthorized practice of law
INQUIRY: Whether a “legal assistant” who previously “lost his license to practice” would be engaging in the unauthorized practice of law in violation of Rule 5.5 of the Oklahoma Rules of Professional Conduct [“ORPC”] and Rule 11.5 of the Oklahoma Rules Governing Disciplinary Proceedings [“ORGDP”] if he conducted the questioning of a witness at a deposition in a pending civil case in the presence and under the supervision of an attorney duly licensed by the Oklahoma Supreme Court?
ABSTRACT: Rule 5.5(b) of the ORPC prohibits a lawyer from “assist[ing] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” Okla. Stat. Ann. tit. 5 ch. 1 App. 3-A. The Comment to Rule 5.5 provides that a lawyer may delegate functions to non-lawyer assistants “so long as the lawyer supervises the delegated work and retains responsibility for their work.” Nevertheless, a lawyer may not delegate the professional function of a lawyer to a non-lawyer assistant. The professional functions of an attorney include conducting formal proceedings on behalf of a client such as asking questions of a witness at a deposition.
In addition, Rule 11.5(b) of the ORGDP requires that pursuant to a petition for reinstatement, a finding must be made whether, “the applicant has engaged in any unauthorized practice of law during the period of suspension, disbarment, or resignation.” Okla. Stat. Ann. tit. 5 ch. 1 App. 1-A. Therefore, a “legal assistant” who previously “lost his license to practice law” should not conduct the questioning of a witness at a deposition in a pending civil case, even in the presence and under the supervision of an attorney duly licensed by the Oklahoma Supreme Court.
The employment of a disbarred lawyer is fraught with ethical peril even with respect to activities that non-lawyers may properly engage in.1 As a general rule, a suspended or disbarred lawyer employed by a law firm is subject to even greater restrictions than those employees without legal training.2 The Oklahoma Supreme Court has adopted the position of State v. Schumacher, 519 P.2d 1116 (Kan. 1974), wherein the court decreed that, “some actions which may be taken with impunity by persons who have never been admitted to the practice of law, will be found to be in contempt if undertaken by a suspended or disbarred attorney.” State ex rel. Oklahoma Bar Ass’n v. Samara, 1986 OK 55, ¶ 11, n. 4, 725 P.2d 306.
Accordingly, even though a licensed attorney in a supervisory capacity may delegate some law-related clerical tasks to non-lawyers, she must not delegate the professional function of an attorney which requires training, knowledge and experience critical to effective representation of the client’s interest. Thus, proper delegation and supervision does not include counseling clients about legal matters, appearing in court, or appearing in formal proceedings that are a part of the juridical process such as questioning witnesses in a deposition.3
Furthermore, the Oklahoma Supreme Court has determined that suspended or disbarred attorneys, and non-lawyers in general, who perform more than clerical work in association with other licensed attorneys are engaging in the unauthorized practice of law. Samara, 1986 OK 55 at ¶ 9. Activities that constitute the unauthorized practice of law if performed by suspended or disbarred attorneys include assisting lay-persons in preparing pleadings;4 giving legal advice to lay-persons;5 writing contracts or selecting and filling out proper deed forms for lay-persons;6 participating in settlement negotiations;7 and participating in pre-trial activities such as taking depositions.8
Finally, engaging in the unauthorized practice of law while disbarred or suspended can be sufficient grounds for denial of reinstatement. In Samara, the Court noted that “[w]here an attorney under suspension continues to practice just as before, with the sole exception of making any formal appearance in court, such conduct when added to that leading to his original suspension requires that he be indefinitely suspended.” Id. at ¶ 11. Accord Matter of Reinstatement of Wright, 1995 OK 128, ¶ 11, 907 P.2d 1060 (wherein an attorney who performed only clerical functions and legal research during a period of disbarment following a felony conviction for distribution of cocaine was reinstated).
In State ex rel. Oklahoma Bar Ass’n v. Wolfe, the attorney prepared pleadings and assisted a former client in preparing pleadings for filing in federal court while under suspension. The Court found the attorney engaged in the unauthorized practice of law while under suspension and ordered disbarment. The Court emphasized that “[m]embers of the bar are on notice that this Court cannot, and will not, tolerate utter disregard for our orders of suspension. To do so, would require us to ignore our paramount duty of preserving public confidence in the entire bar.” 1997 OK 47 at ¶ 15. See also State ex rel. Oklahoma Bar Ass’n v. Downing,1993 OK 44; 863 P.2d 1111 (wherein the respondent’s unauthorized practice during suspension included negotiating a settlement for a former client which resulted in disbarment); Houts v. State ex rel. Oklahoma Bar Ass’n, 1971 OK 62; 486 P.2d 722 (wherein the suspended lawyer’s unauthorized practice, which included filling in warranty deeds and real estate contracts, resulted in disbarment).
Consequently, suspended or disbarred lawyers must be aware that if they continue to engage in activities that are restricted to licensed attorneys, they risk their eligibility for readmission to the bar. Any activity that requires the exercise of professional training and judgment is in this category.
A licensed supervising attorney may delegate to non-lawyers clerical assignments such as researching case law, finding and interviewing witnesses, examining court records, and delivering papers or messages. However, a licensed supervising attorney must not delegate to a non-lawyer, including a disbarred or suspended lawyer, tasks such as providing legal advice to clients, preparing legal documents for clients, or conducting court proceedings.
Thus, it is the opinion of the Legal Ethics Committee that a suspended or disbarred attorney who conducts the questioning of a witness at a deposition in a pending civil case, even with the supervision of a licensed attorney, violates Rule 5.5 of the ORPC and Rule 11.5(b) of the ORGDP.
1. New York City Ethics Opinion 1998-1 (1998).
2. For a discussion regarding the strict limitations other jurisdictions impose upon disbarred lawyers, see Elizabeth J. Cohen, “The Scarlet ‘L’: A Suspended or Disbarred Lawyer has a Tough Time Getting any Legal Work,” ABA Network Practices Strategies/Ethics (April, 2001).
3. American Bar Association (ABA) Formal Opinion 316 (1967).
4.See State ex rel. Oklahoma Bar Ass’n v. Wolfe, 1997 OK 47, 937 P.2d 988.
5. Samara, 1986 OK 55 at ¶ 9; State ex rel. Oklahoma Bar Ass’n v. Holden, 1996 OK 88; 925 P.2d 32. (wherein the respondent was suspended for two years and one day for the unauthorized practice of law while under suspension).
6. Houts v. State ex rel. Oklahoma Bar Ass’n, 1971 OK 62; 486 P.2d 722. (wherein the respondent’s unauthorized practice of law during disbarment resulted in a denial of reinstatement).
7. State ex rel. Oklahoma Bar Ass’n v. Downing,1993 OK 44; 863 P.2d 1111(wherein the respondent’s unauthorized practice of law during suspension resulted in disbarment).
8. See ABA Center for Professional Responsibility & Standing Committee on Client Protection, 1999 Survey of Unauthorized Practice of Law Committees, pg. 7 (report of the Oklahoma Bar Association Unauthorized Practice of Law Committee).