Can a lawyer in good standing employ a disbarred lawyer as a paralegal, law clerk, investigator, or in another law-office role?

Plain-English summary

The opinion revisited a 1978 opinion (Formal Opinion 171) that had read the discipline rules to bar a lawyer in good standing from hiring a disbarred lawyer "in any capacity." The Board of Governors concluded that the rules did not require an absolute prohibition and withdrew Formal Opinion 171. The opinion did not address the employment of suspended lawyers.

Turning to RPC 5.8(b), the committee explained that the rule bars a lawyer from various dealings with a disbarred or suspended lawyer (or one who resigned in lieu of disbarment), including practicing law with or in cooperation with the person, sharing a law office, letting the person use the lawyer's name for the practice of law, practicing law for the person, or any fee- or compensation-sharing arrangement. Reading the rule, the committee said it prohibits employing a disbarred lawyer in connection with the practice of law but not in roles unrelated to it; a disbarred lawyer could be hired for non-law work ranging from mowing lawns to managing an unrelated business or property. It said the rule clearly bars sharing offices and any arrangement relating to the practice of law: a disbarred lawyer may not be employed as a paralegal, law clerk, legal researcher or writer, law-office secretary or other office employee, or as an investigator, messenger, or accountant in connection with the law practice, because that would violate the bar on practicing law under any arrangement for division of fees or compensation with such a person. The committee added that RPC 5.8(b) does not bar a Washington lawyer from associating with a firm that lawfully employs a disbarred lawyer in another jurisdiction that permits it, or from belonging to a firm with offices in such a jurisdiction.

Currency note

This opinion was issued in 1990 and amended in 2009. The amended text references the Washington Rules of Professional Conduct in effect after the 2006 revisions (RPC 5.8(b)). Later rule amendments or opinions may have changed the analysis, and the rule numbering or wording on disbarred and suspended lawyers may since differ. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific provision mentioned here.

Common questions

Q: Can a lawyer hire a disbarred lawyer as a paralegal or law clerk?

A: The committee said no. Under RPC 5.8(b), a disbarred lawyer may not be employed as a paralegal, law clerk, legal researcher or writer, or other law-office employee, because that is employment in connection with the practice of law.

Q: Can a lawyer ever employ a disbarred lawyer?

A: The committee said yes, but only in roles not involving the practice of law, for example managing an unrelated business or property, and it gave examples ranging from mundane tasks to running a non-law business.

Q: Does the opinion cover suspended lawyers?

A: The committee said this opinion did not address the employment of suspended lawyers, though it quoted RPC 5.8(b), which by its terms also reaches suspended lawyers and those who resigned in lieu of disbarment.

Q: What happened to the older opinion on this question?

A: The committee withdrew Formal Opinion 171 (1978), which had read the prohibition on hiring a disbarred lawyer "in any capacity" as absolute.

Background and rules framework

The opinion interpreted Washington RPC 5.8(b), the state rule governing a lawyer's dealings with disbarred, suspended, or resigned-in-lieu lawyers, which has no direct Model Rule counterpart. The committee read the rule to turn on whether the employment is "in connection with" the practice of law, and it noted that other jurisdictions take different approaches, citing Oregon Formal Opinion 2005-24.

Citations and references

Rules of Professional Conduct:

• Washington RPC 5.8(b) (dealings with disbarred, suspended, and resigned-in-lieu lawyers)

Other opinions cited:

• WSBA Formal Opinion 171 (1978) (withdrawn by this opinion)
• Oregon Formal Opinion 2005-24 (other jurisdictions' differing approaches)

See also

• WSBA Ethics Op. 2059: Employing a Suspended Lawyer
• WSBA Ethics Op. 1438: Disbarred Lawyer in a Government Office
• WSBA Ethics Op. 953: Working With a Suspended Lawyer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1527

Original opinion text

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

Advisory Opinion: 184
Year Issued: 1990
RPC(s): RPC 5.8(b), Oregon Formal Opinion 2005-24
Subject: Lawyer in Good Standing May Not Employ a Disbarred Lawyer in Connection with the Practice of Law

In 1978, Formal Opinion #171 was adopted which stated that

"an attorney in good standing who hires a disbarred lawyer in any capacity could be subject to discipline for a violation of the [former] Discipline Rules for Attorneys."

The Board of Governors is of the opinion that the Rules for Lawyer Discipline do not require an absolute prohibition against employing disbarred lawyers "in any capacity" and therefore believes that Formal Opinion #171 should be withdrawn. This opinion does not address the employment of suspended lawyers.

The Rules of Professional Conduct address the issue at RPC 5.8(b):

A lawyer shall not engage in any of the following with an individual who is a disbarred or suspended lawyer or who has resigned in lieu of disbarment:

(1) practice law with or in cooperation with such an individual; (2) maintain an office for the practice of law in a room or office occupied or used in whole or in part by such an individual; (3) permit such an individual to use the lawyer's name for the practice of law; (4) practice law for or on behalf of such an individual; or (5) practice law under any arrangement or understanding for division of fees or compensation of any kind with such an individual.

This rule prohibits a lawyer from hiring or employing a disbarred lawyer in connection with or related to the practice of law. It does not prohibit a lawyer from hiring a disbarred lawyer in capacities not involving the practice of law. Thus, a lawyer may employ a disbarred lawyer in other, nonlaw-related capacities from such mundane tasks as mowing lawns or washing windows, to more sophisticated employment such as managing a business or property not related to the lawyer’s practice of law.

This rule clearly prohibits a lawyer from sharing offices with a disbarred lawyer or having any arrangement with a disbarred lawyer which relates to the practice of law. A disbarred lawyer may not be employed as a paralegal or law clerk, may not be employed to do legal research or writing, or work as a law office secretary or other office employee. Neither may a disbarred lawyer be employed as an investigator, messenger or accountant in connection with a lawyer’s law practice, because that would constitute a violation of the prohibition against "practic[ing] law under any arrangement or understanding for division of fees or compensation of any kind” with a disbarred lawyer.

We recognize that other jurisdictions may have different rules regarding the employment of disbarred lawyers, (see, e.g., Oregon Formal Opinion 2005-24). We are of the opinion that the restrictions imposed by RPC 5.8(b) do not prohibit a Washington lawyer from associating with a lawyer or law firm which employs a disbarred lawyer or lawyers in a jurisdiction which permits it, nor does the rule prohibit a lawyer practicing law in Washington from being a member of a law firm with offices in such a jurisdiction.

Formal Opinion #171 is withdrawn.

[amended 2009]