Friday, February 27, 2009

What constitutes "practicing law"?

What conduct constitutes "practicing law" is a question that has defied clear answers. An attempt to define the concept of "practice of law" by an ABA Commission proved so difficult, the project was abandoned a few years ago.

Yet, courts and disciplinary boards have to address this question every time they have to decide cases where a person is accused of practicing law without a license. For example, the Illinois Hearing Board recently concluded that work performed by a suspended lawyer involved practice of law in violation of a suspension order.

The lawyer had been suspended temporarily from the practice of law and arranged for another lawyer to take over his cases, but continued to work "behind the scenes" on one of his cases. He worked on several drafts of a brief adding significant legal arguments to it and met with the other lawyer to discuss them.

Given these facts, the Board concluded that the lawyer had been practicing law during his suspension. The Board concluded that it was clear that the lawyer "used legal skills and knowledge to identify the legal issues, conduct legal research, and apply the case law to the facts of his case. This is the essence of practicing law."

One problem with this formulation, though, is that it can apply to law clerks at the firm too. In fact, the attorney argued that "he did nothing more than paralegals and law clerks do" -- which is definitely true. We all know that attorneys often ask students to prepare drafts of documents that the lawyers later file under their names. Sometimes the attorneys make substantial changes to the documents but sometimes they don't. Does that mean the students are practicing law illegally before they are admitted. If so, students should be worried.

The Board, without explaining it further, simply dismisses the argument saying "We are not breaking new ground by finding Respondent practiced law. We are simply applying well-established case law to the facts of this case. Respondent was not a law clerk or a paralegal. He was a suspended attorney."

That last sentence, obviously, is the key. The Board does not really care that students are helping lawyers do their work by applying legal skills students develop while in law school. The Board is concerned with the fact that the lawyer in the case was told to stop working and he continued to do so.

That being the case, the Board probably should have cited Illinois Supreme Court Rule 764(b), which expressly states what a disbarred attorney can and cannot do. And, the bottom line of this rule is that a suspended lawyer can't do even what a law student clerk can. Interestingly, also, the rule states that a violation of the rule would be enforced as contempt of court. I wonder if that sanction was mentioned in this case and how often it is invoked in cases like this one.

The concern is that suspended and disbarred lawyers are still out there doing legal work (or something very close to it) "behind the scenes." Unfortunately, there is no good way to monitor this type of activity until it is discovered, which usually happens by accident.

Thanks to Legal Profession Blog for the information.

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