LICENSED ATTORNEYS and the UNAUTHORIZED PRACTICE of LAW Practical Tips to Avoid the Unauthorized Practice of Law by Yourself and Others

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LICENSED ATTORNEYS AND THE UNAUTHORIZED PRACTICE OF LAW Practical Tips to Avoid the Unauthorized Practice of Law by Yourself and Others

Lee M. Smithyman SMITHYMAN & ZAKOURA, CHARTERED Overland Park, Kansas

1. There is no easier way to undertake unauthorized practice than failing to pay your annual registration fee.

Each year, the Kansas Supreme Court will send registration forms to each attorney charging the $175 registration fee, which is used in substantial part to fund the Kansas Office of the Disciplinary Administrator.

Each year, approximately 200 attorneys do not register by the July 1 deadline. In one particularly bad year, almost 1,000 attorneys did not register and pay their fees by July 1.

In the majority of situations, the attorneys changed their practice and/or home addresses without updating their address registration with the Kansas Supreme Court. The Supreme Court's registration reminders did not follow the attorneys to their new addresses, and those attorneys, having previously relied upon the invoice reminders, failed to make payment. This problem is most easily avoided by updating the Kansas Supreme Court change of address form online.

If a $175 fee is not received by July 1, the Kansas Supreme Court sends an email blast to each attorney who failed to pay. If payments are not received thereafter, for any reason to include the fact that the registered addresses or email addresses have not been updated or were incorrect, the attorney practicing after July 1 of that year is practicing law while not registered with the Kansas Supreme Court.

If payment is not received by July 30, an additional $100 penalty is added pursuant to Supreme Court Rule 208. Those that do not pay the additional payment and penalty fee (now $275) by September 30 are named in orders Justice Nuss issues suspending unregistered attorneys. Attorneys who now enter the courtroom or provide legal advice to clients are committing the unauthorized practice of law while suspended.

After a suspension order, an additional $100 payment is required to be paid to the CLE Commission. (Supreme Court Rule 208) Thus, failure to pay the $175 payment by July 1 can add up to the following:

$175 Registration Fee $100 Penalty for Late Payment $100 Penalty for CLE Suspension $100 Penalty for Supreme Court Suspension

$475 Total

Under Supreme Court Rule 5.5, Justice Nuss sends notices to the Chief Administrative Judges of each of the counties, to identify those attorneys who are no longer authorized to practice law. Judges within those counties are required to prohibit the practice thereafter. This is logical. Criminal cases could be appealed for lack of a registered or licensed attorney to assist in the defense.

Kansas Supreme Court Rule 208(e) also requires that other attorneys (such as attorneys within your firm) report the unauthorized practice of law.

In certain situations, attorneys have been indefinitely suspended from the practice of law for repeated failures to pay registration fees on time. See, In re Johnson, 300 Kan. 851 (2014). There, the Kansas Supreme Court indefinitely suspended Brian Johnson (although a minority of the Court would have disbarred Mr. Johnson) for "accumulating a number of suspensions for failing to comply with the administrative responsibilities required of every attorney." Id. at 862.

2. The second easiest way to promote unauthorized practice -- improper pro hac vice sponsorships.

A. Do not attend hearing with your sponsored attorney.

In the Matter of Gary Riebschlager, 2015 WL 7373756, the Kansas Supreme Court noted that pursuant to Kansas Supreme Court Rule 116(b), a Kansas attorney of record must be present throughout all court and administrative proceedings. Because Rachel Mackey sponsored a verified (but untrue) application pro hac vice by Gary Riebschlager and failed to attend the hearing in which Mr. Riebschlager was to present argument, Rachel Mackey was disqualified by the court from further participation of any type in the litigation. Kansas Supreme Court Rule 116(b)(3). Because Mr. Riebschlager's application was inaccurate, he was indefinitely prohibited from practicing before any Kansas court, tribunal or agency.

B. Request pro hac vice status while administratively suspended.

Kenton Hall was admitted to practice law in Kansas in 1988 and in Missouri in 1989. In 1990, Hall changed the status of his Kansas law license to inactive but did not pay the inactive fee. In 1996, the Kansas Supreme Court suspended his license for failure to pay fees. He remained suspended through 1996.

Kenton Hall practiced law in Missouri and Kansas federal court through 2012. When he desired to represent a criminal defendant in Johnson County, he filed a verified application to appear pro hac vice in which he stated that he was a member of the Missouri Bar and in which he did not list his Kansas Bar admission. In the pro hac vice application he further stated:

"I swear and affirm I am a member in good standing of each bar referenced in paragraph 4."

"I have not been the subject of prior public discipline in any jurisdiction."

Kenton Hall believed that his suspension, for failure to pay the inactive fee required by the Kansas Supreme Court, was an "administrative suspension," hence not of the type which he would consider to be "subject to public discipline."

Although the Kansas Supreme Court has not yet heard Kenton Hall's discipline case, the disciplinary panel recommended censure and that the censure be published in the Kansas Reports, to provide clarity on Mr. Hall's mistake to the practicing bar of Kansas.

3. Assisting with the unauthorized practice of others violates KRPC 5.5(a).

Kansas Supreme Court Rule 208 states:

It shall be the duty of each member of the bar and judiciary to report to the Disciplinary Administrator any attempt by an attorney to practice law after his or her suspension. The practice of law after suspension constitutes a violation of Kansas Rule of Professional Conduct 5.5.

KRPC 5.5(a) states:

"A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so."

Lawyers who continue in firms, while on a suspended basis, jeopardize all other attorneys in that firm. KRPC 7.5(d) states:

"Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."

In In the Matter of Wilkinson, 251 Kan. 546 (1992), the Kansas Supreme Court addressed the issue of what a suspended attorney could or could not do. There, the Kansas Supreme Court stated:

Kansas law is consistent with other jurisdictions cited in that an attorney suspended from the practice of law cannot hold himself or herself out to be an attorney, either through signing letters and pleadings or appearing in court; cannot counsel clients about legal matters; and cannot maintain or retain clients. The suspended attorney remains a member of the Kansas bar, subject to the provisions of the [KRPC], and thus subject to being disciplined or disbarred by the court if he or she exceeds or abuses her employment.

Any attorney working near or around a suspended attorney who is working as a paralegal should be most careful. The Wilkinson court also stated:

Just as every lawyer should avoid even the appearance of professional impropriety, a suspended attorney should avoid the appearance of failure to comply with the court's order. The Nebraska Supreme Court has suggested that this means he must refrain from the things which he did as an attorney even though he might legally do them as a layman.. . . A suspended lawyer will not be heard to say that services recognized as within the service of law were performed in some other capacity when he was called to account. (Id. at 549.)

Examples of recently suspended attorneys attempting to continue the practice of law, arguing that they are undertaking the activity in a different capacity, and thereby violating the Kansas Supreme Court's pronouncement in Wilkinson, include:

(1) taking an assignment of a contract claim from a client, and arguing that the suspended attorney is now pursuing the contract claim pro se on his own behalf;

(2) taking an estate client and, instead of representing the estate, asking that the estate appoint the attorney as executor, such that all actions are taken as the executor of the estate rather than its attorney;

(3) continuing to prepare and sign letters to opposing attorneys on a firm letterhead;

(4) continuing use of terms "attorney, lawyer, or counselor" on letterheads or on signs outside the office door.

In the case of In re Schumacher, 214 Kan. 1 (1974), the Kansas Supreme Court adopted the following statement with regard to suspended attorneys:

Attorneys . . . are required to comply with the terms of the decree suspending them in such a manner that there will be no ground for [suspicion] on the part of the bar or the public that the decree of the court is not being exactly observed in its letter and spirit. (Id. at 10.)

The suspended lawyer should not undertake any actions which provide the appearance of practicing law, even if the undertaking could be conducted as a layman. Thus, even if a layman activity was appropriate, the following actions of a disbarred or suspended attorney would be considered the unauthorized practice of law:

(1) obtaining clients;

(2) retaining former clients;

(3) serving clients with the connivance of another attorney and through the use of another attorney's name; or

(4) receiving a law clerk's salary which is really a surrogate for legal fees.

That said, the Kansas Supreme Court would encourage suspended attorneys to maintain their connection with the law through employment as a law clerk, providing certain limitations were observed. The Wilkinson Supreme Court stated:

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 attorney may not be present during conferences with clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them directly or indirectly. (Id. at 553.)

Note that a lay paralegal could undertake any or all of the restricted activities. Thus, should any of you have a disbarred or suspended attorney within your firm or assisting you, you must be absolutely careful to ensure that the restrictions described in Wilkinson are observed.