Can a law firm employ a disbarred lawyer to do legal research and other work?

Plain-English summary

A lawyer asked whether he or his firm could employ a disbarred lawyer to do supervised legal research and case analysis, and how far a disbarred lawyer could be used in a practice. The committee traced its own evolving position. Opinion No. 18 (1956) had barred employing a disbarred lawyer in any capacity, fearing it would make disbarment look meaningless and that the disbarred lawyer would inevitably drift into unauthorized practice. Opinion No. 77-5 (1977) rejected that blanket ban as unduly harsh, reasoning that a total bar would convert disbarment from a protective measure into punishment, but it imposed a balancing test weighing the grounds for disbarment against the duties to be performed.

The present committee agreed with 77-5's rejection of the total ban, noting that courts had generally accepted that position, but rejected the balancing test as too vague to apply with confidence. It observed that the test had been rooted in former Code Canon 9's broad "appearance of impropriety" admonition, which the new Rules deliberately declined to adopt in favor of specific prohibitions (for example ER 1.11, 1.12, 1.15, and 8.4), none of which specifically prohibits hiring a former lawyer. With that mooring gone, the committee adopted a bright-line rule: a former lawyer may do anything a nonlawyer could do.

The committee relied on the existing Rules to guard against abuse. ER 5.3 places an affirmative duty on the employing lawyer to supervise nonlawyer employees and ensure their conduct is compatible with the lawyer's professional obligations, and ER 5.5 strictly forbids assisting anyone in the unauthorized practice of law. The opinion concluded that a lawyer may employ or engage a disbarred lawyer in the same capacity as any nonlawyer, but cautioned that special care must be taken to ensure the disbarred employee does not engage in unethical conduct or unauthorized practice.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a law firm hire a disbarred lawyer to do legal research?

A: The opinion concluded yes; a disbarred lawyer may be employed in the same capacity as any nonlawyer assistant, including supervised legal research.

Q: Did the committee keep its old case-by-case balancing test?

A: No; the opinion rejected the balancing test of Opinion No. 77-5 as too vague and adopted a bright-line rule that a former lawyer may do anything a nonlawyer could do.

Q: What must the employing lawyer do?

A: The committee stressed the ER 5.3 duty to supervise the disbarred employee and the ER 5.5 bar on assisting the unauthorized practice of law.

Background and rules framework

The opinion applied ER 5.3 (Model Rule 5.3) on responsibilities regarding nonlawyer assistants and ER 5.5 (Model Rule 5.5) on the unauthorized practice of law. It explained that the new Rules replaced former Code Canon 9's general appearance-of-impropriety standard with specific prohibitions, which is why a balancing test tied to that standard no longer governed.

Citations and references

Rules of Professional Conduct:

• ER 5.3 / Model Rule 5.3 (responsibilities regarding nonlawyer assistants)
• ER 5.5 / Model Rule 5.5 (unauthorized practice of law)

Other opinions cited:

• Arizona Opinion No. 18 (1956): total ban (rejected)
• Arizona Opinion No. 77-5 (1977): balancing test (the test is rejected here)

See also

• AZ Ethics Op. 87-13: Public Defender Independence
• AZ Ethics Op. 87-23: Seminars With a Nonlawyer
• AZ Ethics Op. 87-26: Reporting a Tax-Return Failure

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=576

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

12/1987

A lawyer may employ a disbarred lawyer in the same capacity as he would employ any non-lawyer assistant.

FACTS

The inquiring lawyer asks whether it is ethically permissible for him or his law firm to employ or engage a disbarred lawyer to do legal research. The lawyer also asks our opinion as to the extent to which a disbarred lawyer may be utilized in a law practice.

In the present case, the disbarred lawyer would be used primarily for legal research and case analysis, and all of the disbarred lawyer's work would be supervised.

QUESTION

Under what circumstances, if any, should a disbarred lawyer be allowed to work for a lawyer or law firm?

OPINION

ER 5.3. Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer: and

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved: or

ER 5.5. Unauthorized Practice of Law

A lawyer shall not:

OPINION

The committee has previously considered this question in its Opinion No. 18 (July 15, 1956) and Opinion No. 77-5 (March 3, 1977). The instant request is the first to be made under the current Rules of Professional Conduct.

In Opinion No. 18, the committee prohibited a lawyer from employing or using a disbarred lawyer in his practice in any capacity whatsoever. The committee feared that any employment by a lawyer would create an impression that disbarment is meaningless and would flout the Arizona Supreme Court's disbarment decision. Moreover, the committee warned that "inevitably” the disbarred lawyer would slide covertly or otherwise into the unauthorized practice of law.

In Opinion No. 77-5, the committee reconsidered its Opinion No. 18 and found its blanket prohibition unduly harsh. The committee reasoned that a total ban on employment would impermissibly transform disbarment from a prophylactic measure intended to protect the public and Bar, see In re Peterson, 108 Ariz. 255, 495 P.2d 851 (1972), to an instrument of punishment. The committee considered such a transformation both unwarranted and improper. The committee thus approved the utilization of a disbarred attorney by a practicing lawyer.

Even so, the committee's approval was grudging. Concerned about the possible appearance of impropriety, which was forbidden by then Canon 9 of the Code of Professional Responsibility, the committee shied away from simply allowing a former lawyer to do anything a nonlawyer could do. Instead, the committee devised a balancing test to assess the impropriety of engaging a disbarred attorney. The test compared the grounds for disbarment with the duties to be performed to determine if the former could ethically permit the latter. As a result, a bright-line test became fuzzy.

The present committee, in reassessing the issue under the present Rules, agrees with Opinion No. 77-5's rejection of Opinion No. 18. Courts have generally accepted this position. See, e.g., The Florida Bar v. Thomson, 310 So. 2d 300 (Fla. 1975); In re McKelvey, 82 Cal. App. 426, 255 P. 834 (1927); see also In re Frabizzio, 508 A.2d 468 (Del. 1986); In re Easler, 272 S.E.2d 32 (S.C. 1980); State ex rel Oregon State Bar v. Lenske, 284 Or. 23, 584 P.2d 759 (1978); Application of Christianson, 215 N.W.2d 920 (N.D. 1974). See generally Annot., 87 A.L.R.3d 279 (1978). The committee would consider any other result to be too draconian.

The committee however rejects Opinion No. 77-5's imposition of a balancing test as unduly complicated and unnecessary. The test is too vague to permit a lawyer to confidently apply it. For instance, what would happen if a lawyer disbarred for perjury sought employment as a legal researcher? Under the present test, it is not clear at all whether the disbarred lawyer ethically could be engaged by a practicing lawyer to conduct supervised legal research. And, no matter what the employing lawyer decides, he will still be dogged by uncertainty. Such uncertainty points up the need for a definite bright-line test that would give the employing lawyer confidence that his actions comport with the present ethical rules and would make the employing lawyer responsible for the disbarred lawyer’s conduct and work product.

Moreover, Code Canon 9, which led the committee to devise the balancing test in the first place, can be said no longer to apply to this situation. The new ethical rules deliberately chose not to adopt Code Canon 9's expansive but vague admonishment to avoid impropriety. Instead, the new rules chose to incorporate specific admonishments for conduct or behavior considered to be improper. See, e.g., ER 1.11 (successive government and private employment): ER 1.12 (former judges); ER 1.15 (safekeeping of property); ER 8.4(c) and (e) (dishonest conduct; state or imply improper influence of government official). As a result, the broad somewhat diffused admonishment of Code Canon 9 has now been transformed into focused specifics. Significantly, there is no specific prohibition concerning the impropriety of hiring or engaging a former lawyer. Thus, the test has ceased to have a mooring under the present Rules.

Accordingly, the committee now adopts the bright-line test of allowing a former lawyer to do anything a nonlawyer could do. By such an adoption, the committee relies upon the present Ethical Rules to ensure that the disbarred employee does not engage in unauthorized law practice or in unethical behavior. ER 5.3 places an affirmative obligation upon the lawyer-employer to supervise his nonlawyer employees, especially in regard to ethical obligations. In addition, ER 5.5 strictly forbids a lawyer from assisting anyone in the unauthorized practice of law. A lawyer who employs or engages a lawyer who has been disbarred should pay careful attention to these two ethical requirements.

1This test is the same as the guideline prescribed in Opinion 74-31 of the Unauthorized Practice of Law Committee (cited in footnote 1 of our Opinion No. 77-5) that a former lawyer may do “any act including conduct permitted by one never admitted to the practice of law.”

In sum, the committee now finds that a lawyer may employ or engage a disbarred lawyer in the same capacity as he would employ or engage any nonlawyer for assistance in his practice. In so finding, however, the committee cautions the lawyer-employer that special care must be exercised to ensure that the disbarred employee does not engage in unethical conduct or the unauthorized practice of law.

© State Bar of Arizona 1987