Following is the 55th post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 5 – “Law Firms and Associations,” focusing on the employment of attorneys who have been disbarred or suspended, or who have resigned or become inactive involuntarily. This Rule of Professional Conduct, as revised, is as follows:
Rule 5.3.1 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Lawyer
(a) For purposes of this rule:
(1) “Employ” means to engage the services of another, including employees, agents, independent contractors and consultants, regardless of whether any compensation is paid;
(2) “Member” means a member of the State Bar of California;
(3) “Involuntarily inactive member” means a member who is ineligible to practice law as a result of action taken pursuant to Business and Professions Code sections 6007, 6203, subdivision (d)(1), or California Rules of Court, rule 9.31(d);
(4) “Resigned member” means a member who has resigned from the State Bar while disciplinary charges are pending; and
(5) “Ineligible person” means a member whose current status with the State Bar of California is disbarred, suspended, resigned, or involuntarily inactive.
(b) A lawyer shall not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is an ineligible person 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;
(3) Appear as a representative of the 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) Receive, disburse or otherwise handle the client’s funds; or
(6) Engage in activities that constitute the practice of law.
(c) A lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting or clerical activities, including but not limited to:
(1) Legal work of a preparatory nature, such as legal research, the assemblage of data and other necessary information, drafting of pleadings, briefs, and other similar documents;
(2) Direct communication with the client or third parties regarding matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages; or
(3) Accompanying an active lawyer in attending a deposition or other discovery matter for the limited purpose of providing clerical assistance to the active lawyer who will appear as the representative of the client.
(d) Prior to or at the time of employing, associating in practice with, or assisting a person the lawyer knows or reasonably should know is an ineligible person, the lawyer shall serve upon the State Bar written notice of the employment, including a full description of such person’s current bar status. The written notice shall also list the activities prohibited in paragraph (b) and state that the ineligible person will not perform such activities. The lawyer shall serve similar written notice upon each client on whose specific matter such person will work, prior to or at the time of employing, associating with, or assisting such person to work on the client’s specific matter. The lawyer shall obtain proof of service of the client’s written notice and shall retain such proof and a true and correct copy of the client’s written notice for two years following termination of the lawyer’s employment by the client.
(e) A lawyer may, without client or State Bar notification, employ, associate in practice with, or assist an ineligible person whose sole function is to perform office physical plant or equipment maintenance, courier or delivery services, catering, reception, typing or transcription, or other similar support activities.
(f) When the lawyer no longer employs, associates in practice with, or assists the ineligible person, the lawyer shall promptly serve upon the State Bar written notice of the termination.
Only two minor changes were made to the CBA’s previous version of this rule (Rule 1-311), now known as Rule 5.3.1. As set forth above, those changes were two additional sub-subdivisions under subd. (a). Subd. (a)(2) defines “member” as a member of the State Bar of California, and subd. (a)(5) defines “ineligible person” as a member whose current status with the State Bar matches one of the four statuses listed in the title of this rule.
The American Bar Association (ABA) has no rules in its Model RPC corresponding to Rule 5.3.1 of the CBA’s revised RPC.
Benefit: Generally speaking, the addition of the fifth definition under subd. (a) – defining the term “ineligible person” – helps to reinforce how important it is for an attorney to understand the four categories relating to a previously practicing attorney.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 23 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at (916) 996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Legal Representation, Disbarred, Suspended, Parker Law Group, Port Parker