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Ethics Opinion

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RI-101

October 1, 1991

SYLLABUS

    A lawyer having knowledge that a suspended lawyer has continued to practice law after the effective date of the order of suspension is required to inform the Attorney Grievance Commission, unless the information is privileged.

    References: MRPC 3.3(a), 4.1, 8.3, 8.4(a), 8.4(b), 8.4(c); C-229, C-239; RI-70, RI-88; JI-26; MCR 2.114, 2.306(C), 9.119; In the Matter of Greenspan, #DP 1/81 Michigan Discipline Board 4/1/82, #DP 98/82, #DP 5/83, Discipline Board 9/30/83.

TEXT

A lawyer was suspended for 90 days by order of the Attorney Discipline Board. During suspension, the lawyer, acting on behalf of a plaintiff, caused two notices and proposed orders to be filed in the circuit court in a pending case, and to be served on counsel for defendant. Also during suspension, the lawyer participated on behalf of the plaintiff in out-of-state depositions on eight separate occasions.

At no time during the lawyer's activity on the plaintiff's matter did the lawyer advise opposing counsel of the suspension. Counsel for defendant has discovered the suspension by reading a published notice, and made inquiries of this Committee on whether the lawyer is obligated to report that information to the Attorney Grievance Commission.

The conduct of lawyer whose license has been suspended, during the period of suspension, is regulated by the provisions of MCR 9.119 which states in part:

    "(A) An attorney whose license is revoked or suspended . . . shall within 7 days of the effective date of the order of discipline . . . notify all of his or her active clients, in writing, by registered or certified mail [of the discipline order and to seek other counsel].

    "(B) In addition to the requirements of subsection (A) of this rule, the affected attorney must, by the effective date of the order of [discipline], in every matter in which the attorney is representing a client in litigation, file with the tribunal and all parties a notice of the attorney's disqualification from the practice of law.

    ". . .

    "(E) An attorney who is disbarred or suspended . . . is, during the period of disbarment or suspension, . . . forbidden from:

      "(1) practicing law in any form;

      "(2) appearing as an attorney before any court, judge, justice, board, commission, or other public authority; and

      "(3) holding himself or herself out as an attorney by any means."

Therefore a suspended lawyer is required to provide notices to the court and parties of the lawyer's disqualification. The notice must be made by the effective date of the order of discipline. While suspended, the lawyer was prohibited from communicating on behalf of others with regard to their legal matters, from filing documents with courts as "attorney" for a party [MCR 2.114], and from conducting depositions regarding matters arising under Michigan state laws [MCR 2.306(C), "Examination and cross-examination of the witnesses shall proceed as permitted at a trial under the Michigan Rules of Evidence."]. In the Matter of Greenspan, #DP 1/81 Michigan Discipline Board 4/1/82, #DP 98/82, DP 5/83, Discipline Board 9/30/83, for seeking to represent clients at deposition, soliciting and representing clients in eviction proceedings, and otherwise violating the order prohibiting the practice of law, respondent's discipline was increased from six months to three years. See also, "Disciplined Lawyers and the Unauthorized Practice of Law," 68 MBJ 1108 (Nov 1989).

The ethics rules obligate lawyers to volunteer information of another lawyer's disciplinary violations unless that information is privileged. This obligation is set out in MRPC 8.3 which states in part:

    "(a) A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission."

The question raised is whether the suspended lawyer's conduct in this inquiry is a significant violation raising a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer which would require disclosure to the Attorney Grievance Commission. We conclude that it is.

The comments to MRPC 1.0 define "substantial" to mean "a material matter of clear and weighty importance." Thus, substantial refers to the seriousness of the possible offense. The purpose of lawyer discipline is for the protection of the public, the courts, and the legal profession, MCR 9.105. It is the duty of lawyers to conduct themselves at all times in conformity with standards imposed on members of the bar as a condition of the privilege to practice law, MCR 9.103. The suspended lawyer's continued practice of law after the effective date of the order of discipline goes to the heart of the self-regulatory process, involves misrepresentation which may rise to a violation of MRPC 8.4(b), 4.1 and 3.3(a) or even perjury, and raises "substantial questions," concerning the lawyer's understanding of the obligations of a lawyer, the legal system, and the rights of parties.

In previous opinions we have discussed and uniformly concluded that lawyers and judges have a duty to not only report known unauthorized practice of law activity, but also to prevent it. See JI-26; C-229, C-239; RI-70, RI-88. A lawyer who knows opposing counsel is not authorized to practice law, but who fails to take steps to see that the improper activities cease, has not fulfilled duties to the administration of justice, and may find himself or herself in violation of ethics rules, such as MRPC 8.4(a) knowingly assisting another to violate ethics rules, or MRPC 8.4(c) engaging in conduct prejudicial to the administration of justice. The consequences to the clients of both lawyers may be severe, such as incurring the expense to have an authorized representative perform the activities the suspended lawyer attempted to perform, striking pleadings, or entering judgment. Therefore, a suspended lawyer's continued practice of law after the effective date of the suspension is a "significant" violation of ethics rules pursuant to MRPC 8.3.

The inquirer is required to report any knowledge of a suspended lawyer's continued practice of law after the effective date of suspension, unless the inquirer's knowledge is privileged, such as when the inquirer learns of the misconduct when the inquirer is retained to represent the suspended lawyer with respect to the consequences of the continued practice. Under the facts of this inquiry, however, the inquirer's information is not privileged.

 
     

 

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