By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
Recently a Florida lawyer was disbarred for practicing law while suspended and for assisting a friend in a malpractice claim against an Illinois attorney.
First, the Florida lawyer wrote two letters to the Illinois attorney on behalf of his friend, outlining the claim and expressing legal opinions about the claim.
The Florida Supreme Court held that sending these letters, alone, did not constitute the unauthorized practice of law.
The Florida lawyer then researched Illinois law on the Internet and allowed his friend to file a pro se complaint in Illinois using the Florida lawyer's address as the friend's address on the pleadings and summons.
When the Florida lawyer was suspended (for unrelated conduct), he assisted the friend directly and through a paralegal in filing and amending the civil action in Illinois. Florida Bar v. D'Ambrosio , ___ So.2d ___, 2009 WL 3763081 (Fla. 2009).
Illinois attorneys have also been disciplined for assisting others in the unauthorized practice of law.
In one case, a lawyer assisted his wife (a disbarred lawyer) in the unauthorized practice of law by having her help him provide legal services to a retired police sergeant who was reported to have been under investigation by the FBI for his possible involvement in the 1977 disappearance and probable murder of Helen Brach.
The attorney and his wife met with the client to discuss the matter. The attorney asserted that his wife was a criminal attorney and would be assisting him in the representation. They met with the client on at least three additional occasions to discuss the case.
The retainer agreement provided that the lawyer would represent the client, and a "compensation agreement" provided that any funds that would be realized from any source from the sale of the client's story would be divided equally between the client and the lawyer's wife.
The wife sent numerous e-mails to the client requesting information, discussing testimony of witnesses and defendants, discussing the news report naming the client, and providing legal advice to the client.
For assisting his wife in the unauthorized practice of law, among other misconduct, the attorney was suspended for two years and until further order of the court. In re Whelan , 07 CH 114, M.R. 22799 (2009).
In another case, an attorney was found guilty of having assisted his son in the unauthorized practice of law. The attorney's son was a law student but was assigned to take the deposition of a defendant doctor. In re Schwartz , 98 CH 92, M.R. 1769 (2001).
In yet another case, an attorney was censured for aiding his law partner in the unauthorized practice of law while the partner was suspended.
While the partner was suspended, the attorney worked with his suspended partner on two pending cases and met with one of the clients.
The attorney found those cases to be complex, involving legal procedures and issues that he had not dealt with before. The suspended partner possessed the experience to handle these matters. Both cases generated substantial work and billing for the firm.
The attorney knew his partner should not meet with clients or perform legal services during her suspension, but he allowed her to do so in these instances because of the nature of the cases. In re Smock , 94 CH 461, M.R. 10331 (1994).
Another attorney was censured for aiding his paralegal in the unauthorized practice of law. The paralegal worked part-time for the attorney and had an independent paralegal business as well.
In one case in which the attorney was to have represented the client, the paralegal explained the differences among bankruptcy chapters 7, 11 and 13, and decided where on the bankruptcy schedules certain financial information would be placed. The paralegal completed the documents based on the client's responses to her questions, which she paraphrased from the bankruptcy forms. She also determined the client's exemptions and completed the exemption schedule.
Even after the client told the paralegal that the amounts of the exemptions were incorrect, she did not change them.
The attorney testified that although he reviewed the completed bankruptcy petitions, he had no involvement in the preparation of the petitions, and, with the exception of one, made no changes to them.
He did not know whether the paralegal or the debtors made the determinations necessary to complete the bankruptcy documents, but he did not make those determinations. He simply reviewed the petitions and was available to answer questions. In re Barnes , 98 CH 124, M.R. 16989 (2000).
In recent years, attorneys have been accused of aiding non-lawyers in the practice of law in loan modification and mortgage relief matters. Attorneys involved in those matters and others are well advised to be careful when providing services outside their jurisdiction, using paralegals or consorting with suspended attorneys.