Opinion 2005-10
(July 2005)

The inquirer was placed on inactive status for not fulfilling CLE requirements sometime in the 1990’s. Thereafter, while still on inactive status, he engaged in the unauthorized practice of law by representing several clients in tort actions over a six-month period. He recently sought reinstatement, fully acknowledged his misconduct, and participated in a disciplinary proceeding (consolidated with the reinstatement petition) with regard to the unauthorized practice issue. Following a hearing, the Disciplinary Board recommended suspension of a year and a day – presumably to be followed by full reinstatement – and the inquirer has filed a petition with the Supreme Court of Pennsylvania for review of that decision.

On the assumption that the petition will be denied and the suspension will be implemented, the inquirer seeks guidance from this Committee as to whether he can engage in the following functions while suspended from the practice of law:

  1. public speaking;
  2. writing (presumably for publication);
  3. teaching;
  4. acting as a mediator, arbitrator or master;
  5. providing management and organizational priority-setting and consultation to organizations which provide legislative, systemic, legal and other advocacy; and
  6. sharing his knowledge on the skills and process of being a master with the public at large and the legal community in particular.

The inquirer states that some but not all of this work would be done for payment. He intends to introduce himself as someone who is not speaking or acting as an attorney.

The inquirer also asks if he can identify himself by his “J.D.” degree as long as he does not use terms such as “Esquire” or “Attorney at law.”

As the inquirer notes, the applicable rule is Rule 217 of the Pa. Rules of Disciplinary Enforcement (the “Rule”) That rule provides, in pertinent part, as follows:

“(j) A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the following requirements:

(1) All law-related activities of the formerly admitted attorney shall be conducted under the direct supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision (j). If the formerly admitted attorney is employed by a law firm, an attorney of the firm shall be designated by the firm as the supervising attorney for purposes of this subdivision.

(2) For purposes of this subdivision (j), the only law-related activities that may be conducted by a formerly admitted attorney are the following:

(i) legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;

(ii) direct communication with the client or third parties to the extent permitted by paragraph (3); and

(iii) accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.

(3) A formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney.

(4) Without limiting the other restrictions in this subdivision (j), a formerly admitted attorney is specifically prohibited from engaging in any of the following activities:

(i) performing any law-related activity for a law firm or lawyer if the formerly admitted attorney was associated with that law firm or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred, through and including the effective date of disbarment or suspension;

(ii) performing any law-related services from an office that is not staffed, on a full time basis, by a supervising attorney;

(iii) performing any law-related services for any client who in the past was represented by the formerly admitted attorney;

(iv) representing himself or herself as a lawyer or person of similar status;

(v) having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3);

(vi) rendering legal consultation or advice to a client;

(vii) appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;

(viii) appearing as a representative of the client at a deposition or other discovery matter;

(ix) negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction;

(x) receiving, disbursing or otherwise handling client funds.

(5) The supervising attorney and the formerly admitted attorney shall file with the Disciplinary Board a notice of employment, identifying the supervising attorney, certifying that the formerly admitted attorney has been employed and that the formerly admitted attorney's activities will be monitored for compliance with this subdivision (j). The supervising attorney and the formerly admitted attorney shall file a notice with the Disciplinary Board immediately upon the termination of the employment of the formerly admitted attorney.

(6) The supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this subdivision (j).

Note: Subdivision (j) is addressed only to the special circumstance of formerly admitted attorneys engaging in law-related activities and should not be read more broadly to define the permissible activities that may be conducted by a paralegal, law clerk, investigator, etc. who is not a formerly admitted attorney. Subdivision (j) is also not intended to establish a standard for what constitutes the unauthorized practice of law. Finally, subdivision (j) is not intended to prohibit a formerly admitted attorney from performing services that are not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.”

Pa.R.D.E. 217 (emphasis added)

Guided by the foregoing rule, the Committee concludes that the inquirer may engage in public speaking, teaching and writing directed to third parties other than clients and adjudicative bodies, and may act as a mediator, arbitrator or master, so long as he does not hold himself out as a lawyer and otherwise complies with Rule 217. While the inquirer states that he will introduce himself “as someone who is not speaking/acting as an attorney,” the Committee believes that such language is vague, implying that he is an admitted attorney but that he simply is not proceeding in that capacity. The Committee would take this a step further, requiring that the inquirer introduce himself as someone not currently admitted to practice.

Under the same constraints, and subject to other applicable laws, regulations and contractual obligations, the inquirer may provide management and organizational priority-setting to organizations and, in a classroom setting, may share his knowledge on the skills and process of being a master, neither of which the Committee considers to be law-related activities.1 The inquirer may not, however, provide consultation to organizations which provide legal advocacy if the consultation contemplated by the inquirer will include dispensing “legal consultation or advice” under Rule 217(j)(4)(iv). If so, Rule 217 prohibits him from doing so.

We disagree with the implication in the inquirer’s letter that law-related services may be performed beyond the ministerial, clerical and preparatory activities addressed in Rule 217 as long as a supervising attorney is involved. The requirement of attorney supervision, under Rule 217, is required in addition to the other restrictions on law-related activities set forth in the rule. Supervision does not extend the scope of permissible activities beyond those enumerated. Although it is possible that non-lawyers may perform certain law-related activities, the rule makes clear in an explanatory note that law-related activities which non-lawyer paralegals, law clerks and investigators may perform nevertheless may not be performed by suspended or disbarred attorneys, if they exceed the scope of those activities specifically permitted in 217(j)(2) or fall within the scope of activities specifically prohibited in 217(j)(4).

This approach is consistent with the Third Circuit opinion in In re Mitchell, 901 F.2d 1179, 1185 (3d Cir. 1990), in which the court observed “Attorneys charged with violations of suspensions frequently argue that they are only performing acts which may lawfully be performed by laymen. However, ‘[a] suspended lawyer is not the same as a layman. The public knows that he has a legal education, that he has engaged in the practice of law, and that his work and his opinions are presumably more valuable on that account.’” Id., quoting, Application of Christianson, 215 N.W.2d 920, 925 (N.D.1974). See also, Childs v. Smeltzer, 18 Pa. D. & C. 39 (1933), aff’d, 315 Pa. 9, 171 A. 883 (1934), in which the court distinguished between a non-lawyer’s ability to engage in conveyancing and other real estate activities and a disbarred lawyer’s inability to do so, due to the confusion that would result from clients dealing with one whom they believe to have legal expertise.

The Committee further believes that the explanatory note to the rule intentionally limited its examples of activities “that are not unique to law offices” to those, like equipment maintenance, which are not law-related. The Committee does not believe that the Note intended to suggest that the appropriate standard is whether a non-lawyer can perform the activity.

With respect to the inquirer’s second question, regarding the identification of himself as a “J.D.,” the Committee believes that such a reference, while technically accurate, could lead to the misimpression that the inquirer is a licensed attorney. Rule 217(j)(4)(iv) explicitly prohibits a formerly admitted attorney from “representing himself or herself as a lawyer or person of similar status.” Unless the J.D. reference were accompanied by clearly visible language clarifying that the inquirer is “not currently admitted to practice,” the Committee does not believe that such use would be permissible.

We note in passing that the Court of Appeals of New York once held that a disbarred attorney did not violate a suspension order by identifying himself with a “J.D.” following his name. See In the Matter of Rowe, 80 N.Y.2d 336, 604 N.E. 2d 728, 590 N.Y.S. 2d 179 (1992), cert. denied, sub nom, Rowe v. Joint Bar Ass'n Grievance Committee for Second and Eleventh Judicial Districts, 508 U.S. 928 (1993). The Committee is not bound by that decision, which was rendered by another state and which did not apply the broad language of Rule 217.

Note

  1. The Supreme Court of Pennsylvania observed in Office of Disciplinary Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654 (2004) that it has never explored the breadth of the phrase “any form of law-related activities,” as that phrase is used in Rule 217. It held, however, that the phrase “certainly includes the practice of law,” and held further that although it favored defining the “practice of law” on a case-by-case basis, the phrase includes, inter alia, “the instruction and advising of clients in regard to the law so that they may pursue their affairs and be informed as to their rights and obligations.” The high court also held that the phrase includes “the holding out of oneself to the public as competent to exercise legal judgment and the implication that he or she has the technical competence to analyze legal problems and the requisite character qualifications to act in a representative capacity.” 855 A.2d at 660.