Work by disciplined attorneys limited

by Nancy McCarthy
Staff Writer

A widely criticized new rule that governs the employment of disciplined attorneys was approved by the Supreme Court last month. Rule 1-311 of the Rules of Professional Conduct is directed at attorneys who employ disciplined lawyers, requiring them to notify their clients and the State Bar of the employment and making them responsible for assuring that the disciplined lawyer does not perform certain activities.

Critics of the rule argue that the notice to clients requirement will scare off clients, effectively precluding the employment of attorneys who have been disciplined. As a result, the rehabilitation required for reinstatement will not be achieved.

In addition, the new rule prevents disciplined attorneys from performing certain kinds of work which can be done by paralegals or other non-lawyers. Therefore, critics say, a disciplined attorney faces more restrictions than if he or she had never been admitted to practice.

Los Angeles attorney Arthur Margolis, who represents attorneys with discipline problems, says the rule is unnecessary because most of its provisions are covered elsewhere. "It's just the bar proving to the world it's doing its job," he said. "It's just mean-spirited for the purpose of show biz."

The rule was developed by the bar after members of the Board of Governors said some disciplined lawyers essentially continue to practice despite restrictions imposed by their misdeeds. In some instances, they do so under the sponsorship of licensed attorneys.

"Our view was that lawyers, once they have forfeited their right to practice by their conduct, should not be allowed to continue doing the same thing they were doing before under the sponsorship of another lawyer," said Fran Bassios, director of enforcement for the bar's Office of the Chief Trial Counsel.

Bassios estimated that several hundred attorneys will be affected by the rule.

President-elect Tom Stolpman called the new rule an overreaction which only serves to further punish attorneys rather than rehabilitate them.

He said it would "lump together murderers with petty thieves" and stymie employment opportunities for disciplined lawyers.

The Supreme Court's approval of the rule is a change in its recent pattern of sending rules back to the bar for further modification or outright rejection of proposed rules.

Within the bar, the rule went through numerous drafts and revisions since it was originally requested in 1993.

Two drafts were sent out for comment by the public, and each encountered significant opposition.

The rule was submitted to the court in December. Justice Joyce Kennard opposed it.

Specifically, it regulates attorneys who employ, associate with or aid a disbarred, suspended, resigned (with charges pending) or involuntarily inactive lawyer.

The employer attorneys are prohibited from allowing any disciplined lawyer from engaging in certain activities, including handling client trust funds, appearing on behalf of a client in a workers' compensation hearing or in a private mediation or arbitration, negotiating with a third party, and appearing at a deposition or other discovery matter.

The attorney employer must notify in writing any client on whose matter the disciplined attorney might work and must notify the State Bar when the lawyer is hired and terminated.

The rule also spells out the activities a disciplined attorney may engage in, including research, communicating with a client about such matters as billing and scheduling, and attending a deposition to provide clerical assistance.

The disciplined attorney may also serve as a janitor, caterer, courier, receptionist or typist.

According to a summary of the rule sent to the court, it is designed to regulate the employer rather than the disciplined lawyer because the bar does not have jurisdiction over disbarred and resigned lawyers.

Some of the activities prohibited can be performed by a non-lawyer, including handling workers' comp or arbitration matters, and some negotiation with third parties. In addition, some client trust accounts have lay signatories.

The rule, therefore, gives the disciplined lawyer fewer rights than non-lawyers, say critics.

Bassios disagrees. "You don't have to handle client funds or interface with clients to be rehabilitated or provide services," he said.

But Margolis said disbarred and suspended attorneys "have often made tremendous and extremely invaluable contributions to the practice of law by being part of someone else's law firm. Now you're going to cut away a tremendous intellectual and energy resource."

He also suggested that the rule will make it more difficult to settle cases if disciplined lawyers are virutally precluded from employment at any law firm.

The rule took effect Aug. 1 and applies to any lawyer who is employing a disciplined attorney at that time.

A full copy of the rule is available from Katherine McMahon, Office of Professional Competence, Planning and Development, 100 Van Ness Ave., 28th Floor, San Francisco 94102-5238; 415/241-2154.