Friday, July 17, 2009
The Kansas Supreme Court found that an attorney who had "retired" and sold his practice to another attorney had violated prohibitions against unauthorized practice and imposed disbarment. The key facts:
Perhaps the best evidence against [the accused attorney] came from his own characterization of what he was doing after his "retirement." He told Hesse [the bar's investigator] that he was a "paralegal." Some years ago, this court opined that a disbarred or suspended attorney could act as a paralegal. However, the activities of such a paralegal are limited.
"The consensus is that an attorney suspended from the practice of law may obtain employment as a law clerk, providing there are certain limitations upon 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 licensed 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 clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly." In re Wilkinson, 251 Kan. at 553.
[His] first problem is that he was not actually employed by a licensed attorney. Granted, he had an agreement with Kjorlie [who purchased his practice] to sell his client base in which he agreed to provide "administrative assistance" to the buyer. However, the only compensation provision of that agreement involved splitting the future legal fees from [his] "client base." In fact, Lloyd made his fee payments directly to [the accused attorney], rather than to Kjorlie.
Moreover, Kjorlie's testimony clearly refuted that he was acting as [his] supervising attorney-employer in the matter. For instance, he appeared to be completely unaware of the particulars of the quitclaim deed preparation and was quite confused as to the nature of Lloyd's $3,500 payment to [the acussed attorney]. [His] activities went far beyond "work of a preparatory nature." Rather, [he] was operating as an independent paralegal who even employed his own paralegal, McConnell.
Further, as [the accused attorney] told Hesse, the client base of the post-retirement consulting firm was the same as the law firm's client base. Clearly, [he] made the majority, if not all, of the contacts with the clients. He even acknowledged that he would go to court with a former client and the new attorney to assist with the case. In short, the only change in [his] activities following retirement is that he would only "second chair" in court and that he would tell his clients he was a "retired attorney." [He] was practicing law.
[His] attempts to avoid the rules set forth in Wilkinson by asserting that a retired attorney is different from a suspended or disbarred attorney. He intimates that a retired attorney has more leeway to engage in some sort of limited practice of law than an attorney who has been suspended. We disagree. The reasons for applying the Wilkinson rule–e.g. to avoid the appearance of impropriety, to avoid confusion among laypersons, or to avoid the temptation for law-trained clerks (or paralegals) to go beyond mere preparatory work–apply as equally to retired attorneys as to suspended or disbarred attorneys. See In re Wilkinson, 251 Kan. 549-51.
[His] situation is particularly akin to that of a suspended attorney because he avoided the potential of being placed on that status by agreeing to retire and cease practicing law. He was just as obligated to refrain from the practice of law as if he had been formally suspended.