Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Requirements for Employment of Disbarred, Suspended, Resigned or Involuntarily Inactive Member

Most of us have come into contact with attorneys who have been disciplined by the State Bar for violations of the rules that regulate attorneys. It is unfortunate for someone who has gone through the rigor and high cost of law school, as well as passing the bar exam, to run afoul of the rules and to lose that golden “ticket.” Even a lawyer who has lost her right to represent and advise clients can still use her beneficial knowledge and experience working for a licensed attorney.  Indeed, many lawyers who have been disciplined – particularly in cases of substance abuse – have been rehabilitated and can still provide value to a firm and its clients.

However, it is important for any firm considering employment of a lawyer who has had these challenges to know and observe the requirements of the Rules of Professional Conduct, which are strictly construed by the California State Bar. RPC 1-311 sets forth the parameters within which a disciplined lawyer[1] may work with a licensed attorney or firm. The Rule applies relative to such disciplined attorneys regardless of whether or not they are actually employees, and includes associating with or aiding in any way a lawyer or law firm.

The disciplined lawyer may not perform any of the following tasks: 1) Legal consultation or advice to clients; 2) Appear on behalf of a client in any hearing before a judge, arbitrator, mediator, public agency, referee, magistrate, commissioner, or hearing officer; 3) Appear as a representative of a client at a deposition or other discovery matter; 4) Negotiate or transact any matter on behalf of a client; 5) Receive, disburse, or handle a client’s funds; or 6) Engage in activities which constitute the practice of law.  However, the disciplined lawyer may perform legal research, draft pleadings and briefs, have direct communication with clients on matters such as scheduling, billing, updates, confirming receipt of documents, and perform clerical tasks for an active member who is appearing in court or at a deposition.

Importantly, any attorney member who uses the services of a disciplined lawyer must at or before the time of service, notify the State Bar in writing of the employment, including a statement that the disciplined lawyer will not perform any of the prohibited tasks, which must be enumerated in the notice. A written notice must also be given to any client on whose matters the disciplined attorney will work, before or after the time the work is to be performed. The member must maintain proof of the client’s notification for a period of two years following the termination of the member’s employment with the client. Upon termination of the disciplined lawyer, the member must serve notice of the termination on the State Bar as well.   

[1] For purposes of this article, a “disciplined lawyer” is a member who has either been disbarred, suspended, is ineligible to practice law as a result of actions taken pursuant to Business & Professions Code sections 6007, 6203 (c), or California Rule of Court 9.31, or has resigned from the State Bar while disciplinary charges are pending.

-- Deborah Wolfe

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**