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OBA Ethics Counsel

Ethics Opinion No. 293

Adopted May 20, 1978

INQUIRY

Is it proper for an attorney in Oklahoma to employ in his law office an individual who was formerly a licensed attorney in the State of Oklahoma, but is presently suspended from the practice of law or who has been disbarred? If it is proper for an attorney to employ such an individual, what duties can the suspended or disbarred attorney perform while engaged in such employment?

OPINION

The Code of Professional Responsibility, Canon 3, imposes an affirmative duty upon lawyers to assist in preventing the unauthorized practice of law.

It is apparent from a consideration of Canon 3 of the Code of Professional Responsibility that an attorney who employs a suspended or disbarred lawyer to work in the law office of the practicing attorney undertakes a course of conduct which offers the opportunity for the disbarred or suspended attorney to continue to engage in the practice of law. The same possibility, of course, exists without regard to whether or not the suspended or disbarred attorney is employed in a law office by a licensed practitioner.

This circumstance is mentioned by the Committee only to point out to a licensed attorney the serious responsibility which he undertakes by reason of Canon 3 when a suspended or disbarred attorney is employed to work for the licensed practitioner.

The Committee is of the opinion that it is not ethically improper or in any manner illegal for a licensed attorney to employ in his law office an individual who was formerly a licensed attorney but who has been suspended or disbarred from the practice of law. However, Ethical Consideration 3_6, Code of Professional Responsibility, clearly states the limits of the activities which the former lawyer may properly conduct as an employee of the practicing attorney. The relationship of attorney-client must always be between the licensed attorney and the client. The licensed attorney must in fact perform those functions which constitute the "practice of law" in an office where non-lawyer personnel are employed. Ethical Consideration 3-6, Code of Professional Responsibility.

Ethical Consideration 3-5, Code of Professional Responsibility, wisely provides that "it is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to rendition of services for others that call for the professional judgment of a lawyer."

The judgment to be exercised in the handling of specific legal matters is necessarily the judgment of the licensed practitioner. The licensed practitioner must accept and exercise complete responsibility for all actions performed within his office which constitute the "practice of law."

The case of R.J. Edwards, Inc., et al., v. Hert, et al., 504 P.2d 407 (Okla., 1972) deals with the question of what constitutes the "practice of law" in the State of Oklahoma. This decision considered and determined whether certain specific types of conduct engaged in by municipal bond marketers and their agents in assisting the officials of governmental entities to authorize and market bonds amounted to the unauthorized practice of law. Since, in effect, the bond marketing companies and their agents merely utilize forms and procedures prescribed by the Attorney General, who in law was the Attorney for the governmental entities, the Court concluded that the challenged conduct did not amount to the unauthorized practice of law. The question of whether or not particular conduct amounts to the practice of law is clearly a factual question in each case:

"It will be necessary for cases in the future to fully develop the facts in order to determine if the conduct of a particular business constitutes an enjoinable practice of law." Ibid. at 419.