A common punishment in attorney disciplinary proceedings is some form of suspension. What does it mean to be suspended from the practice of law?
The question was recently raised by an attorney who received service of a complaint filed by an attorney who was now suspended. Was the attorney allowed to leave his name on pleadings if co-counsel was handling the case?
Notice and Proof of Compliance Requirements
ABA Model Rule 27 details the obligations of suspended attorneys. When an attorney is suspended, he has ten days to notify all clients, co-counsel, and opposing counsel (or parties if the parties are unrepresented) in pending matters of the order of suspension. The court imposing the suspension may also require additional notice to be sent, such as to financial institutions if necessary to protect the interests of clients or other members of the public.
Attorneys must also provide their clients with their files and other property such that a new attorney may take over the matter and refund any fees held in trust which have not yet been earned. The attorney must also move to withdraw from representation if a new attorney does not substitute in for the suspended attorney before the effective date of suspension.
The attorney may not take on new representation between the time the order is issued suspending him from practice and the date on which he is reinstated. He must also file proof of compliance with the court imposing discipline.
Public Protection, Not Attorney Protection
The rule is designed to protect an attorney’s clients and the general public. The commentary to the rule makes this goal abundantly clear. The commentary states, “These notice provisions are necessary so that the respondent’s inability to practice does not prejudice the rights of existing clients or other parties, and those who might otherwise have occasion to deal with the lawyer are made aware of the lawyer’s suspension or disbarment.”
What about the attorney’s protection? Some suspensions are not long – as little as 30 days can be imposed. If a client wants to continue to have the attorney represent her when the suspension ends, the complete end to the representation required by Rule 27 makes it a cumbersome process to re-retain the reinstated attorney.
Full compliance with the rule is absolutely required; an attorney may not fail to return the client’s file or unearned fees even if the client asks them to continue the representation. Failure to comply to the letter is cause for further discipline.
Beyond Private Practice
While these rules sound most applicable to private practice attorneys, they have equal force on in-house and government lawyers. Massachusetts made headlines when it suspended an in-house attorney for failing to keep her paperwork current. The attorney failed to file a change of address with the state bar. Then she didn’t pay her annual registration fee. The state bar suspended her from practice. That subjected her to all the same compliance requirements as a private practice attorney would face under the state’s equivalent of Rule 27.
Oklahoma also made the news when it suspended a prosecutor for misconduct that occurred in death penalty cases decades earlier.
What To Do During Suspension
For the suspended attorney, what exactly can he do during his suspension? For an attorney engaged in the full-time practice of law, suspension can mean complete cessation of income. If law is his sole source of his livelihood, suspension can be devastating. This is more of a problem for solos than attorneys in firms.
States have grappled with this question. In California, an active attorney may employ a suspended attorney to perform support work so long as notice is provided to any client for whom the suspended attorney is working. California’s Rule of Professional Conduct 1-311 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Member provides that an active attorney may not employ a suspended attorney to render legal consultation to a client, appear for a client, negotiate on behalf of a client, handle client funds, or engage in the practice of law. The suspended attorney may, however, perform legal research, assemble data, draft pleadings and briefs, handle scheduling and client correspondence, and accompany an active member of the bar to depositions and discovery proceedings.
Other states have similar rules. Rule 217(j) of the Pennsylvania Rules of Lawyer Disciplinary Enforcement details what a “formerly admitted lawyer” may do while suspended. Rule 2.16 Disbarred or Suspended Attorneys of the Disciplinary Rules of the Hawaii Supreme Court states that an attorney may not have client contact or contact with anyone else on legal matters.
The ABA issued an informal ethics opinion, ABA Standing Committee on Ethics and Professional Responsibility Informal Opinion 1434 Employment of Disbarred Lawyer in Nonlegal Capacity, which stated that the crux of the issue is whether what the suspended attorney is doing is considered the practice of law under the applicable state rules. If what the suspended attorney is doing is the practice of law under states rules, then the employing attorney may be in violation of the rules prohibiting an attorney from aiding the unauthorized practice of law.
If You Are Suspended
If you find yourself subject to suspension, look closely at your state’s applicable rules. It is likely that you have notice and reporting requirements under your state’s version of Model Rule 27. It is also quite likely that your state allows you to engage in certain activities which can produce income for you through your suspension, so long as you have an active lawyer willing to employ you in compliance with the rules.