In re the Reinstatement of Blake

GURICH, J.,

concurring in reinstatement;

[1 I join in the Court's decision to reinstate Glen Blake, but write separately to address my concern over the absence of restrictions on disbarred or suspended lawyers who remain employed in the legal profession. Blake's work for the Tulsa County Public Defender's office came remarkably close to engaging in the unauthorized practice of law. I believe it is necessary to adopt more defini*473tive boundaries and bright-line constraints regulating employment of disbarred and suspended lawyers.

Unauthorized Practice of Law

T2 Rule 5.5(b), Rules of Professional Con-duet, 5 0.8$.2011, ch. 1, app. 1-A, forbids an unlicensed individual from practicing law in this State.1 Likewise, ORPC Rule 5.8 places accountability on persons who hire a disbarred or suspended lawyer, and is designed to ensure to prevent unauthorized practice.2 While we have defined the practice of law as "the .rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent," this statement provides minimal guidance to the legal profession.3

18 Our opinions have addressed and imposed discipline for acts which were unmistakably engaging in the unauthorized. practice of law. See State ex rel. Okla. Bar Ass'n v. Wolfe, 1997 OK 47, ¶ 15, 937 P.2d 988, 998 (holding that suspended attorney engaged in the unauthorized practice of law by offering legal advice to clients and drafting/filing pleadings in federal court); State ex rel. Okla. Bar Ass'n v. Holden, 1996 OK 88, ¶¶ 3 & 11, 925 P.2d 32, 34-85, 38 (finding suspended lawyer who agreed to represent clients, accepted fees for legal work and gave legal advice was engaged in unauthorized practice of law); State ex rel. Okla. Bar Ass'n v. Samara, 1984 OK 32, ¶ 4, 683 P.2d 979 (concluding suspended lawyer violated prohibition on unauthorized practice of law by submitting correspondence identifying him as attorney-at-law, maintaining office door with words law office, negotiating insurance settlements, and appearing in court on behalf of a client). Additionally, we have disciplined an attorney for allowing a non-lawyer employee to "engage in the unauthorized. practice of law by performing legal services in the form of legal research, the alleged preparation of a motion for postcon-viction relief and of a petition for writ of certiorari to the United States Supreme Court without proper supervision by a licensed lawyer." State of Okla. ex rel. Okla. Bar Ass'n v. Martin, 2010 OK 66, ¶ 13, 240 P.3d 690, 698. Yet, we have not offered clear direction to suspended/disbarred lawyers or the firms and attorneys who: employ those individuals as legal assistants.

{4 None of our decisions have" applied ORPC Rules 5.3 or 5.5 to impose detailed limitations on disbarred or suspended attorneys who continue employment in the legal profession.4 Similarly, our Court has not *474promulgated any rule regulating the hiring of disbarred or suspended lawyers. In 2002, the OBA Legal Ethics Committee issued Ethics Opinion No. 319. This opinion examined ORPC Rule 5.5(b) in the context of assignments delegated to a disbarred/suspended lawyer working as a legal assistant.5 Recognizing the potential ethical dilemma associated with employing a suspended or disbarred attorney, the OBA recommended certain restrictions on what 'work could be performed:

Accordingly, even though a licensed attorney in a supervisory capacity may delegate some law-related clerical tasks to non-lawyers, she must not delegate the profession'al function of an attorney which requires training, knowledge and experience critical to effective representation of the client's interest. Thus, proper delegation and supervision does not include counseling clients about legal matters, appearing in court, or appearing in formal proceedings that are a part of the juridical process such as questioning witnesses in a deposition.

The ethics opinion further recommended limiting assignments to tasks such as researching case law, examining court records, finding and interviewing witnesses, or delivering documents.

[5 Although Blake denied engaging in the unauthorized practice of law, the evidence before this Court is less conclusive. First, Blake met directly with clients, without the presence of a licensed attorney. A disbarred or suspended lawyer who meets independently and unsupervised with clients is a precarious situation. Such an environment is likely to initiate the dissemination of professional advice. It is also likely to cause client confusion about the individual's professional status.

16 The record also indicates Blake was present in court on a daily basis. The record is not clear whether his attendance was for clerical purposes, or whether he actually had dialogue with clients, assistant district attorneys, and judges. Letters submitted by some of the judges familiar with Blake's work, demonstrate how blurred the lines were in this case. One judge noted, "[Blake] has handled numerous cases for [the Public Defender's] office and I have witnessed countless times how well he performs his duties."6 She went on to explain, "[his demeanor is always pleasant to the Court as well as to the clients' that he helps represent."7 Another judge added further confusion in her letter of recommendation:

Mr. Blake's paperwork is promptly and properly prepared, making all the difference in a docket conducted efficiently and well. Mr. Blake works hard to prepare for his docket and as well works hard during the docket to allow efficient handling of the pleas and waivers of the Public Defender's clients, most of whom are in custody. He is straightforward and accurate when I ask ~ him questions. He is diligent and responsive to needs for information.8

While both letters are intended to be highly complementary of Blake, each casts doubt on whether Blake was merely a clerical employee or an unlicensed individual performing a lawyer's tasks, A letter from a third judge was the most troublesome:

Mr. Blake's performance is marked by always being punctual, well prepare[(d] and well informed reference [sic] the client's cases, to the extent that I rely more heavily on his input at the preliminary hearing level more so than] the licensed attorneys. His frankness, ability to communicate to all the parties involved, to include the court, and his attention to detail surpasses a majority of the parties that have routinely appear[ed] before me over the course of the last 11 years. From my observations and dealings, it is clear that Mr. Blake's dedication to those he assists in representing and lengths to which he prepares and presents the issues before the court is *475clearly up to the high ethical standards of the Bar.9

T7 Because we have not adopted any comprehensive standards to address employment of the disbarred or suspended lawyer, it. is helpful to analyze cases and rules from other jurisdictions, Some states expressly prohibit employment of disbarred or. suspended lawyers in the legal profession.10 Conversely, other states allow suspended or disbarred lawyers to work as a paralegal or law clerk, but generally place constraints on this employment arrangement. The court opinions and rules from these states supply an excellent framework from which we could develop appropriate boundaries.

18 For example, in Matter of Wilkinson, 251 Kan. 546, 834 P.2d 1356, 1362 (1992), the Kansas Supreme Court held employment of a suspended attorney as a law clerk was not a violation of the rules prohibiting the unlicensed practice of law, so long as limitations were in place. In particular, the Wilkinson Court emphasized the importance of preventing contact between the suspended lawyer 'and clients:

The consensus is that an attorney suspended from the practice of law may obtain employment as a law clerk, providing there are certain limitations tipon the suspended attorney's activities. Regarding limitations, we are persuaded the better rule is that an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for:a licensed attorney-employer if - 'the suspended lawyer's functions are limited exclusively 'to work of a preparatory nature under the supervision of a lHcensed attorney-employer and does not involve client contact, Any contact with a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during . conferences with ‘cltents, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly.

Id. (emphasis added), The Wilkinson Court also forbade a disbarred or suspended lawyer from being present in any courtroom or legal proceeding involving client matters. Id. Subsequent to Wilkinson, the Kansas Supreme Court further added that "[a] suspended attorney cannot function independently as a law clerk or paralegal; he or she must work for and be supervised by a licensed attorney who is ultimately responsible for the paralegal work." In re Miller, 290 Kan. 1075, 288 P.3d 227, 237 (2010).

T9 Interviewing witnesses or potential witness has also been considered improper. Matter of Frabizzio, 508 A.2d 468, 469 (Del.1986); see also The Florida Bar v. Thomson, 310 So.2d 300, 303 (Fla.1975) (Overton, J. dissenting).)11 The drafting and execution of *476legal documents, such as a will or deed, has been deemed the unauthorized practice of law. State ex rel. Nebraska State Bar Ass'n v. Butterfield, 172 Neb. 645, 111 N.W.2d 543, 546 (1961) (drafting of will, power of attorney, deeds, mortgages, ete., involve the exercise of legal skill and training and constitute practicing law).12

10 The State of Colorado adopted a modified version of Rule 5.5, ABA Model Rules of Professional Conduct. Colorado's version of the rule reads, in relevant part:

(b) A lawyer shall not employ, associate professionally with, allow or aid a person the lawyer knows or reasonably should know is a disbarred, suspended, or on disability inactive status to perform the following on behalf of the lawyer's client:
(1) render legal consultation or advice to the client; -~
(2) appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer; __
(8) appear on behalf of a client at a deposition or other discovery matter;
(4) negotiate or transact any matter for or on behalf of the client with third parties;
(5) otherwise engage in activities that constitute the practice of law; or |_
(6) recelve, disburse or othervwse handle client funds.

Colo. RPC 5.5(B) (emphasis added); see also, 52 M.S.A., Rules of Prof.Conduct, Rule 5.8.

11 Florida has adopted Rule 3-6.1 of the Rules Regulating The Florida Bar, which allows "persons or entities providing legal services [to] employ suspended lawyers and former lawyers who have been disbarred .... to perform those services that may ethically be performed by nonlawyers employed by authorized business entities." In addition, R. Regulating Fla. Bar 8-6.1(c) requires employers to notify The Florida Bar of the employment arrangement, together with "detailed description of the intended services to be provided." Florida expressly prohibits a suspended or disbarred lawyer from direct client contact; and receipt, disbursement, or handling. of client trust funds or property. R, Regulating Fla. Bar 8-6.1(d).

'Conclusion

112 A suspended or disbarred lawyer, hired to work as a legal assistant, law clerk or paralegal, stands perilously close to the proverbial cliff's edge-the unauthorized practice of law. See e.g., In re Reinstatement of Anderson, 2002 OK 64, ¶ 10, 51 P.3d 581, 583 (noting attorney's reluctance to work as a paralegal because employment in that capacity would give too much opportunity "to cross the line.").13 The Oklahoma Supreme Court has the responsibility to regulate the practlce of law to ensure protection of the public welfare. In re Reinstatement of Otis, *4772007 OK 82, ¶ 9, 175 P.3d 357, 361 quoting In re Reinstatement of Smith, 1994 OK 19, ¶ 6, 871 P.2d 426, 428. To fulfill this duty, I would adopt specific conditions applicable to employment of disbarred or suspended attorneys in the legal field.14

{13 My discussion is not directed at paralegals, secretaries, legal assistants, or law clerks, who have never been licensed to practice law. I also want to. emphasize that a disbarred or suspended lawyer is not in the same status as a licensed legal intern, nor do the Rules of the Supreme Court on Licensed Legal Internship apply to a disbarred or suspended lawyer.15 An attorney who has been suspended or disbarred stands in shoes vastly different from the aforementioned employees—his or her employment in the legal field should be subject to even closer seruti-ny. I believe creatmg specific gmdelmes will better protect the public, the OBA, members of the Bar, and the disciplined attorney who wishes to seek reinstatement at a later date.

, ORPC Rule 5.5(b) provides in relevant part;

Hoole tk
A lawyer who is not admitted to practice in this jurisdiction shall not: a
(1) except as authorized. by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

. ORPC Rule 5.3 reads as follows:

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the 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
(c) a lawyer shall be respons1ble for conduct of > stich a person that would be a violation of the Rules of Professional (Cdnduct if engaged in by a lawyer if:
(1) the lawyer orders or, w1th the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

. R.J. Edwards, Inc. v. Hert, 1972 OK 151, ¶ 20, 504 P.2d 407, 416.

As dlscussed prev1ously, our decmons in Wright and Johnston both weighed reinstatement of attorney's who had been working as paralegals. Yet, neither opinion considered such employment in light of the prohibition against the unauthorized practice of law. See also In re Reinstatement of Morgan, ¶ 13, 340 P.3d 1, 4 (noting lawyer who had resigned pending discipline was working for law firm performing ”legal research and general paralegal duties.")

. See OBA Legal Ethics Comm., Ethics Opinion No. 319 (2002). http://ethics.okbar.org/Ethics Counsel/EthicsOpinions/Opinion319.aspx.

. PRT Hearing, Responderit’s Ex. 26.

. Id.

. PRT Hearing, Respondent's Ex. 27.

. PRT Hearing, Respondent's Ex. 28.

, See In re Kuta, 86 Ill.2d 154, 56 Ill.Dec. 56, 427 N.E.2d 136, 140 (1981):

Without a doubt, a disbarred or suspended attorney should not serve as a law clerk or a paralegal during his disbarment or suspension, The line of demarcation between the work that a paralegal or a law clerk may do and those - functions that cam only be performed by an attorney is not always clear and distinct. The opportunity for a disbarred or suspended attorney who is serving as a paralegal or a law clerk to violate that line of demarcation is too great and too inviting.

See also, Tenn. Sup. Ct: R. 5.5(h) ("A lawyer or law firm shall not employ or continue the employment of a disbarred or suspended lawyer as an attorney, legal consultant, law clerk, paralegal or in any other position of a quasi-legal nature."); Rule 26, Ala. R. Disc. P. (allowing a suspended lawyer to seek permission to be employed in the legal profession, but prohibiting employment of a disbarred attorney); Rule 34(a), South Carolina' Rules for Lawyer Disciplinary Enforcement ("A lawyer who is disbarred, suspended or transferred to incapacity inactive status shall not be employed ... as a paralegal, investigator or in any other capaaty connected with the law.").

. Justice Overton explained his disapproval of permitting disbarred attorneys to work without restrictions in the- legal industry: I dissent. The practical effect dof allowing unrestricted law of fice employment of suspended or disbarred lawyers clearly reduces the effect.of any order of suspension or disbarment and is another step to effectively dilute the punishment.

To the layman, the difference between mere clerking and the unrestrained practice of law is not readily apparent. © He observes an attorney, supposedly under suspension for unethical conduct, walking into law offices; necessarily *476he must wonder whether the attorney is indeed being disciplined. This confusion is compounded when the disciplined attorney is interviewing witnesses as an investigator on behalf of the law firm or otherwise discussing cases with clients, The resulting detriment to the integrity and reputation of the Bar is obvious
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I omitted).

. See also In re Boyer, 988 P.2d 625, 626-627 (Colo.1999) (suspended lawyer efigaged in the unauthorized practice by evaluating clients' personal injury claims, negotiating with insurer regarding claims, and collecting fees from the settlement amount); In re Creasy, 198 Ariz. 539, 12 P.3d 214, (2000) (finding disbarred lawyer in contempt for participating as a private adjuster for a client during arbitration proceedings); In re Chavez, 129 N.M. 35, 1 P.3d 417, 424 (2000) (holding suspended lawyer engaged in practice of law by drafting pleadings for clients, despite fact that "he did not sign the pleadings he drafted for his clients, or that he had not entered an appearance in any court.").

, See also Application of Christianson, 215 N.W.2d 920, 925 (N.D.1974)([t]he public knows that [a disbarred lawyer] 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. , We cannot accept the argument that a disbarred or suspended lawyer may engage in all activities which non-lawyers also perform."); In re Anonymous, 787 N.E.2d 883 (Ind.2003) (explaining that an attorney who has been suspended or disbarred is "prohibited from maintaining a presence or occupying an office where the practice of law is conducted so the public is not misled into believing that the attorney is still authorized to practice law."). .

, I would .adopt the followmg condxtlons, to govern employment of a' disbarred or suspended lawyer as a paralegal, clerk, legal assistant, or any other position of a quasi-legal nature:

1. All work must be directly superv1sed by an 'OBA licensed attorney;
2. The supervising attorney must work in the same or as the employee;
3. The supervising lawyer shall provide a report to the OBA annually, outlining the work being performed by the employee and attesting to compliance with ORPC Rules 5.3 and 5.5.
4, A disbarred or suspended lawyer shall not: (a) work with a former partner, associate, law firm, agency or other entity, with whom the lawyer was employed/affiliated with at the time of the misconduct or discipline; or (b) work on any legal matter involving the disbarred or suspended lawyer's former clients or adversarial clients;
5. A disbarred or suspended lawyer shall not have direct dealings with clients;
6. A disbarred or suspended lawyer may perform legal research and writing if done so while: (a) employed by an attorney, law firm, or other public/private entity; and (b) the work is thoroughly supervised by a licensed attorney with employer;
7. A disbarred or suspended lawyer shall be prohibited from interviewing, deposing, or questioning any witness;
8. A disbarred or suspended lawyer shall be prohibited from negotiating insurance claim settlements, including but not limited to, as a private insurance adjuster; 9. A disbarred or suspended lawyer shall not participate in any trial, hearing, mediation, arbitration or other legal proceedings; and
10. A disbarred or suspended lawyer shall not receive, disburse or otherwise handle client funds."

. 50.98.2011, ch. 1, app. 6.