Legal Ethics Corner

Ethics Corner 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 for SDCBA members.

State Bar Suspensions and the Unauthorized Practice of Law

A recent California State Bar Court opinion highlights the effect of a suspension on an attorney’s ability to practice law. The Review Department of the State Bar Court recommended disbarment for an attorney who held himself out to the public and the courts as an attorney despite having been suspended by the State Bar. (In the Matter of Heurlin, State Bar Court Case No. 09-O-10774.) Among other things, the Court found the attorney’s use of “Esq.” after his name constituted a willful violation of California’s prohibition on practicing law while on suspension.

Business and Professions Code Section 6125 states: “No person shall practice law in California unless the person is an active member of the State Bar.” (Emphasis added.) Section 6126 makes it a crime to hold oneself out as an attorney during any period of suspension:

Any person who… has been suspended from membership from the State Bar… and thereafter practices or attempts to practice law, advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code or in a county jail for a period not to exceed six months.

The Heurlin Court noted that the unauthorized practice of law included an attorney expressly or impliedly holding himself out as either practicing law or being authorized to practice law.  (The court cited to Crawford v. State Bar (1960) 54 Cal.2d 659, 666 and In re Naney (1990) 51 Cal.3d 186, 195.)

The attorney had “used the honorific ‘Esq.’ or referred to himself as ‘attorney’ or ‘Law offices of John N. Heurlin’” in various pleadings and correspondence, despite his suspension. The Court was not convinced by the attorney’s argument that the word “esquire” had many meanings, and could refer to property owners or subscribers of the magazine Esquire. In the context of the pleadings and correspondence, the Court held that the attorney’s conduct “may well have created ‘the misleading impression’ that [the attorney] presently is licensed to practice law and currently maintains a functioning law office.”  (Emphasis in original.) Based on his prior disciplinary record and the fact that his violations of Sections 6125 and 6126 appeared willful (he had been criticized by the Court of Appeal for the use of “Esq.” after his name, but continued to use it), the Court recommended disbarment.

-- Jack Leer

**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.**