Employment Of Suspended Lawyer Draws Two Sanctions
An attorney who had employed a suspended lawyer and was himself suspended for 18 months in New York as a consequence received a six-month reciprocal sanction in New Jersey.
The Disciplinary Review Board noted in its report and recommendation that the employed attorney was disbarred for unauthorized practice.
As to Respondent, the New York First Department had concluded
Following its review of the Referee’s Report and Recommendation, the New York court agreed with the Referee’s findings that respondent committed misconduct with respect to Gonchar’s continued use of his Gmail address. However, the court determined that the Referee erred in concluding that respondent had not aided Gonchar in the unauthorized practice of law. The New York court noted that “activities like preparing memoranda and documents to be filed in court – even if subscribed to by an admitted attorney – or conducting interviews with clients are forbidden to a suspended or disbarred attorney.” It is for this reason that orders issued in New York suspending or disbarring attorneys are statutorily required to insert language that an attorney must “desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another,” and that the disciplined attorney is prohibited from “giving to another of an opinion as to the law or its application, or of any advice in relation thereto.” N.Y. CLS Jud § 90 (2).5.
The New York court found that Gonchar operated “as a ‘paralegal’ dispensing advice through the intermediaries of attorneys who interacted directly with clients,” possessed superior legal knowledge, and “functioned as a senior attorney . . . by the exercise of his experience and acumen . . . not his services as a paralegal, [and] made major contributions to the resolution of many of the firm’s cases.”
The New York court rejected as not credible respondent’s belief that Gonchar could work as a paralegal so long as he was prohibited from contact with anyone outside the Firm. In so finding, the New York court highlighted the misleading job description respondent and Friedberg had prepared and their failure to seek independent legal counsel before hiring Gonchar.
In New Jersey, Respondent sought a backdated six-month suspension.
Here
Although it does not appear that respondent had malicious motives when he determined to employ Gonchar, there is no question that he assisted Gonchar in the unauthorized practice of law. Knowing Gonchar faced suspension, respondent offered him employment at the Firm and assisted in the preparation of a job description, in which his Firm would grant Gonchar the title of “Administrative, Clerical and File Assistant.” Respondent claimed to have spent a significant amount of time researching whether Gonchar could work at the Firm and, if so, what job functions Gonchar could perform. Although respondent consulted with Gonchar’s ethics counsel – rather than independent and neutral
counsel – and researched the issue on the internet (since the Firm did not have a LexisNexis or Westlaw account), respondent wholly failed to appreciate the language of the New York court rules (which are substantially the same as the relevant New Jersey Rule), as mirrored in Gonchar’s suspension order, which read that Gonchar was required to “desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another,” and that he was prohibited from “giving to another of an opinion as to the law or its application, or of any advice in relation thereto.” Additionally, although respondent appears to have offered Gonchar employment at the Firm for benevolent reasons, respondent accepted the fruits of Gonchar’s unauthorized practice of law and took no steps during Gonchar’s employment to ensure Gonchar conformed his duties to the job description so carefully constructed prior to his employment.
The DRB proposed a six-month prospective suspension. (Mike Frisch)