Josh J.T. Byrne, Swartz Campbell

The practice of law is the only business many of us know. A formerly admitted attorney who has been suspended or disbarred has a world of skills, but needs to figure out what to do with them in order to make a living. Many formerly admitted attorneys leave the legal profession entirely seeking employment in new arenas. However, after having devoted a lifetime to developing the skills necessary to succeed in the legal profession, other formerly admitted attorneys seek to continue employment in the profession. Formerly admitted attorneys have much to offer in terms of knowledge, ability and contacts, but, employment of a formerly admitted attorney also has potential pitfalls for both the hiring law firm/attorney and the formerly admitted attorney.

Employment of a formerly admitted attorney is governed by Pennsylvania Rule of Disciplinary Enforcement 217(j) which states: “A formerly admitted attorney may not engage in any form of law-related activities in this commonwealth except in accordance with the following requirements …” The requirements for a formerly admitted attorney to engage in law-related activities include that the activity be conducted only under the supervision of a member of the bar “who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision.” If engaged by an organization (law firm or otherwise), the organization must designate a “supervising attorney.” Pursuant to Rule 217(j)(5), the supervising attorney and the formerly admitted attorney must file a notice of engagement with the Disciplinary Board, identifying the supervising attorney and certifying the formerly admitted attorney's activities will be monitored for compliance with subdivision 217(j). A notice must also be filed immediately upon termination of the engagement. Pursuant to Rule 217(j)(6), the “supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this subdivision (j).” The office must be staffed by the supervising attorney on a full-time basis.

Under Rule 217(j)(2)(i), a formerly admitted attorney is only allowed to perform “legal work of a preparatory nature,” including legal research and drafting of briefs, pleadings and transactional documents. A formerly admitted attorney may also accompany a member of the bar to depositions, meetings “or other discovery matter” to provide clerical assistance to the member of the bar. Under Rule 217(j)(2)(ii) and (3), the formerly admitted attorney may have contact with clients and other third parties “limited to ministerial matters.” The rule requires the formerly admitted attorney clearly indicate in the communications that “he is a legal assistant and identify the supervising attorney.”

Formerly admitted attorneys are specifically prohibited from performing law related tasks with a law firm or organization they were associated with from the time of the occurrence of the acts which resulted in suspension or disbarment through the effective date of the discipline. Formerly admitted attorneys may not represent themselves as a lawyer “or person of similar status,” or perform services for any client they previously represented. Formerly admitted attorneys may not perform the functions of a lawyer, including providing legal advice, appearing on behalf of a client at a hearing or proceeding before any “adjudicative person or body,” appearing as a representative in a deposition or other discovery matter, negotiating or transacting a matter on behalf of a client or handling client funds.

Our Supreme Court has found that under Rule 217(j) a formerly admitted attorney may perform the functions of a paralegal, and may perform those services even if not working in the office where the supervising attorney is employed. See, In re Perrone, 587 Pa. 388, 399, 899 A.2d 1108, 1114-15 (2006). In one of the more interesting decisions regarding a formerly admitted attorney's ability to represent clients, a divided Supreme Court held that a formerly admitted attorney could not represent a claimant in unemployment compensation hearings, even though claimants in unemployment compensation hearings may be represented by nonlawyers and a prior Supreme Court decision stated such representation does not constitute the practice of law, see Powell v. Unemployment Compensation Board of Review, 638 Pa. 558, 561, 157 A.3d 884, 885 (2017). The court determined that formerly admitted attorneys were in a separate class from both “attorneys” and “nonlawyer representatives.”

A set of recent disciplinary decisions highlight the pitfalls of employing a formerly admitted attorney. In April 2018, Ronald I. Kaplan was disbarred on consent in Office of Disciplinary Counsel v. Kaplan, 203 DB 2017. Kaplan was suspended for a year and a day in September 2006. A petition for reinstatement was denied in 2009. In January 2013, Neil R. Gelb informed the Disciplinary Board that he had engaged Kaplan as a paralegal/administrative assistant. Kaplan had communications with opposing counsel regarding a client matter in which he identified himself as “Ron Kaplan J.D. Case Manager,” but did not identify himself as a “legal assistant,” and did not identify the supervising attorney. Kaplan prepared the client for deposition and appeared at the deposition as a representative of the client. Gelb did not appear for the deposition. The deposition transcript identified Kaplan as “Ronald Kaplan, Esquire” “Representing the plaintiff.” Kaplan participated in the deposition and questioned the client. Kaplan subsequently failed to respond to a DB-7 regarding alleged violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement.

This past May, the Supreme Court issued an order in Office of Disciplinary Counsel Counsel v. Barnett, 175 DB 2018. Barnett, a formerly admitted attorney who was placed on inactive status in 2003, was suspended for a period of two years. After being placed on inactive status, Barnett was employed by the Law Office of Neil Gelb as a “Litigation Manager.” Barnett and the law firm did not file a notice of engagement as required by Rule 217(j)(5). Barnett was also involved in negotiating a settlement with an insurance company for a Gelb firm client. Barnett did not inform the insurance company that he was ineligible to practice law, and after Barnett agreed to a settlement on behalf of the client, the client refused to sign the settlement. The insurance company subsequently succeeded in a motion to enforce settlement.

Barnett also held himself out as an attorney in three other cases in which he had contacts with clients that were not limited to ministerial matters, failed to identify himself as a legal assistant, and represented himself as a lawyer or person of similar status. The Supreme Court accepted a joint recommendation of suspension for two years.

In May 2018, the Supreme Court suspended Neil Robert Gelb for a period of 18 months. Gelb was suspended for failing to monitor Kaplan and Barnett.

While formerly admitted attorneys have skills and knowledge that can be very valuable to a law firm, engagement of a formerly admitted attorney carries significant risks. Any lawyer or firm seeking to engage a formerly admitted attorney must navigate the water of Rule 217(j) very carefully.

Josh J.T. Byrne, a partner in Swartz Campbell's professional liability group in the firm's Philadelphia office, is also co-chair of the Philadelphia Bar Association's professional guidance committee and the incoming chair of the Pennsylvania Bar Association's professional liability committee.