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OPINION NO. 96
OF THE MISSISSIPPI STATE BAR

RENDERED JUNE 7, 1984

Editor's Note: Refer to Rule 5.5.

UNAUTHORIZED PRACTICE OF LAW - It is not proper for an attorney to allow a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney's law office.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following situation:

Is it proper for an attorney to allow or employ a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney's law office. In particular is it proper for the attorney to allow the disbarred or suspended attorney to interview clients, draft pleadings, do legal research or perform title examinations.

Rule 11 (a) of the Rules of Discipline for the Mississippi State Bar, adopted September 7, 1983, by the Supreme Court of Mississippi and becoming effective from and after January 1, 1984, provides, in part, as follows:

A person disbarred or suspended shall not be permitted to practice law until restored to that privilege by the Court by way of an appeal or petition for reinstatement.

Section 73-3-55 of the Mississippi Code of 1972 provides, in part, as follows:

Any person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instituted in any court in this state, or give any counsel or advice therein, or who shall write or dictate any bill of sale, deed of conveyance, deed of trust, mortgage, contract, or last will and testament, or shall make or certify to any abstract of title to real estate other than his own or in which he may own an interest, shall be held to be engaged in the practice of law.

If the intended employment is the unauthorized practice of law as prohibited by Section 73-3-55 of the Mississippi Code 1972, then the prohibitions of Canon 3, "A Lawyer Should Assist in Preventing the Unauthorized Practice of Law," would make the employment of a disbarred or suspended attorney unethical conduct:

DR 3-101--Aiding Unauthorized Practice of Law. (A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.

In the recent case of In re Frank John Kuta, Attorney, Petitioner, 427 NE2d 136 (1981), the Supreme Court of Illinois held as follows:

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 can 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. Also, the public is not aware of the differences between the work of a paralegal and that of an attorney. For a disbarred attorney to be seen performing what the public may perceive as legal functions can only lessen the public's regard for the effectiveness of our attempt to discipline errant attorneys, and would foment the belief that the public was not being protected from unethical attorneys.

A synopsis of unpublished Informal Opinion 7 (found at page 134 of the American Bar Association Opinions on Professional Ethics, 1967 edition) indicates that the American Bar Association Committee on Ethics and Professional Responsibility previously has given this advice:

An attorney should not employ a disbarred lawyer, even to do only office work and seeing no clients, because of the practical difficulty of confining his activities to an area which does not include practice of law, and because such employment would show disrespect to the courts.

Disciplinary Rule 1-102 (A) (5) mandates the following: A lawyer shall not engage in conduct that is prejudicial to the administration of justice.

An attorney's allowing a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney's law office would not only "show disrespect to the courts" but would be "prejudicial to the administration of justice."

Therefore, it is the opinion of this Committee that it would not be proper for an attorney to allow a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney's law office.

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