Disciplinary Counsel has become vigorous in prosecuting law-related activity and the unauthorized practice of law.
I have seen some of your past articles about the unauthorized practice of law, law-related activity, corporate counsel not licensed in Pennsylvania, etc. What is the bottom line?
This is a good qustion because these problems keep reappearing. Apparently, no one reads the articles I write on these subjects.
In very basic form, here are the problems that lawyers are facing. This is particularly true of lawyers who aren’t licensed in Pennsylvania, but are here as corporate counsel or assistant corporate counsel. It’s also being faced by lawyers who allowed their Pennsylvania law license to lapse and are on administrative suspension, which used to be called inactive status.
Obviously, every lawyer knows that one cannot engage or assist anyone in the unauthorized practice of law. There are criminal statutes that prevent that and it’s specifically prohibited by Pennsylvania Rules of Professional Conduct 5.5. There are some minor exceptions for transitional or temporary representation under that rule. Rule 5.4 prohibits sharing fees with nonlawyers with certain exceptions. The rule prohibits forming partnerships with nonlawyers. The unauthorized practice of law is not something to be taken lightly.
Unless there is some good reason or good explanation why the lawyer didn’t know they were not licensed to practice (i.e., on inactive status), many times the penalty for the unauthorized practice of law is a year and a day suspension or more. A year and a day is a very tough suspension because one has to apply for reinstatement. In effect, if one gets a year and a day, they probably will not be practicing for two to three years.
There is a secondary issue of law-related activity. This is found in Pennsylvania Rules of Disciplinary Enforcement 217(j). That rule was written for suspended or disbarred lawyers who were attempting to work with law firms in some capacity. There are registration requirements and supervision requirements and limited activities a suspended or disbarred lawyer can do. But, many lawyers don’t realize that also applies to those who are on inactive status (administrative suspension), i.e., let their license lapse because they chose not to pay the annual fee or chose not to complete their CLE requirements timely. When one is on administrative suspension or inactive status, he cannot practice law. This is true even if he has his category as “retired inactive.” If he wants to be involved, then he has to act as a paralegal with the limitations under Rule 217(j) and he has to register by letters with the Disciplinary Board. They have to be fully supervised. What most lawyers don’t seem to get is that if one is on inactive status or administrative suspension (administrative suspension is the new word for inactive status), he cannot immediately reinstate himself if more than three years has passed. Then he has to go through an administrative reinstatement hearing, which is done quickly, but still could take several months, if not longer.
I have seen a lot of lawyers who for whatever reason has let their law license lapse. For instance, a lawyer might be licensed in two jurisdictions and be practicing in New Jersey. He lets his Pennsylvania license lapse. He then gets a good job offer to come back to Pennsylvania. When he comes back, he finds he can’t practice because his administrative suspension is beyond the three-years mark. That creates a real problem. When he joins the firm, he is then engaged in law-related activity or the unauthorized practice of law.
Some of the worst offenders are corporate counsel. For some reason there is a myth out there that if a lawyer is licensed in another state and working for a corporation in-house, they can come in and practice and give advice in any state. That’s just not the case. Many states, such as Pennsylvania, have a limited in-house corporate law license. This is found at Pennsylvania Bar Admission Rule 302. A lawyer can apply for that license if they are licensed in another state and then practice as corporate counsel in Pennsylvania by giving advice on limited areas, such as advising the board of directors, etc. But, they cannot go into court or offer legal services unrelated to the corporation. The rule should be closely looked at. If a lawyer is already on administrative suspension in Pennsylvania because she let her Pennsylvania law license lapse, she cannot come back and seek the limited corporate license for Pennsylvania. She has to get her law license activated. First, this creates a real problem since until the law license is reinstated, the lawyer can be charged with the unauthorized practice of law or law-related activities with resulting possibly serious discipline.
The next problem is that when people are inactive and finally realize they have to apply or if they’ve only been on inactive for a short period of time and then they are advised by a judge who saw their name on an inactive status, the lawyer has to fill out the form correctly. So many lawyers in a rush to be reinstated—if they are within the three-year period—will fill out the form even though they’ve never sent notice to the clients. They’ll swear they did. That can create another basis for discipline, i.e., not being truthful.
The Office of Disciplinary Counsel has become very vigorous in prosecuting law-related activity and the unauthorized practice of law. Therefore, this is not some arcane subject where there are no consequences. There can be very serious consequences. Not only would this preclude someone from getting back from administrative suspension for doing law-related activity, it could also result in major additional discipline.
The biggest tragedy of all, particularly for corporate counsel, in-house corporate counsel that come to Pennsylvania and are licensed in another state, but not in Pennsylvania, is the fact that if Pennsylvania disciplines, they will be given reciprocal discipline for their law license. The fact a lawyer is not licensed in Pennsylvania doesn’t prohibit Pennsylvania from disciplining that lawyer and if the lawyer is suspended, then the home state where the lawyer is licensed will give reciprocal discipline unless there’s some due process violation.
Therefore, what is the bottom line? Don’t put yourself on inactive status because one never knows when they might want to return to practice in Pennsylvania. When one is on inactive status, then he can’t practice in Pennsylvania until he is reinstated. If his inactive status is beyond thee years, the reinstatement process takes time. If the lawyer comes to Pennsylvania and is hired as an in-house counsel or general counsel and then realizes they can’t get their license reinstated, they are in a terrible position of being with a firm and engaged in either the unauthorized practice of law or law-related activity. Their reinstatement petition will go nowhere until those other issues are resolved and they’ll take additional discipline. It’s a no-win situation. Although it seems obvious not to do this, it is done all the time by lawyers. For whatever reasons, lawyers are just too cheap to pay their annual fee of $225 or to complete their CLEs if they are not practicing in Pennsylvania for a period of time. But, this can have dire consequences.
Also, for whatever reason when corporate counsel come into Pennsylvania, even though they are licensed in another state, they don’t take the steps to get the limited license and, in fact, start to practice law by giving advice in Pennsylvania. When this comes out, it then has severe consequences and can actually ruin one’s professional career.
For lawyers who are placed on inactive status because they forgot to do CLEs or pay their annual fee, then they must know when they immediately reply not to mislead on the form. If they didn’t notify their clients, tell the truth and give a reason.
Finally, those who are seeking reinstatement from the practice of law, whether it’s from an administrative reinstatement, or from a suspension or disbarment, must be aware that during the time of their suspension of disbarment, Disciplinary Counsel is looking at anything that is law-related activity. Law-related activity isn’t clearly defined in Pennsylvania. Though the issue is still up in the air as to what happens if one is an insurance agent or real estate broker or corporate compliance officer, etc. during his suspension.
Hopefully, this article will summarize the problems that I have been written repeatedly over the last six months. This is a minefield that can truly hurt a lawyer who unintentionally allows themselves to get in that administrative suspension situation or is not licensed in Pennsylvania, but comes in under the guise of in-house corporate counsel and doesn’t take these other steps. The bottom line is “lawyers beware.” But corporate counsel not licensed in Pennsylvania shouldn’t take the job unless they take the steps to get at least a limited license. Those who are on inactive status should immediately seek their reinstatement.
Using a judge’s first name is not acceptable and highly improper.
A very close friend of mine was elected judge of the Court of Common Pleas. The new judge gets upset when I address him by the title judge. Is there a rule?
There is no real rule of professional conduct or of judicial conduct as to how to address a judge. But, the basic rule of thumb is, in the courthouse or within close vicinity of the courthouse or in any legal related proceedings or seminars; a judge is addressed by the term judge. In a courtroom, it’s better to use the words “your honor.”
Perhaps in a restaurant or on vacation or a dinner at one’s home, old friends will address each other by their names. But, I believe the better practice is once a person is a judicial officer, they are addressed as a judicial officer. This is absolutely true always in the courthouse or law-related settings. It’s optionally true elsewhere.
Why is that? The reason is two-fold. First, one wants to uphold the dignity and respect of the judiciary. A judicial officer takes on the institution they are serving. In that role, the judicial officer has to be treated with respect and dignity. Walking into a courtroom or seeing a judge in the courthouse, even if they have been the lawyer’s best friend in private practice, requires calling the person judge or“your honor. Otherwise, the dignity of a judge could be lessened if people, laypeople or others, hear a lawyer addressing the judge by their first name in the courtroom or even outside the courtroom or in the judicial chambers. The second reason is to not to give the impression that one has some inside track or influence with the judicial officer.
If people hear a lawyer calling the judge by their first name in a very familiar circumstance in the courthouse, it can lead to the appearance that the lawyer is going to get some favorable result. Under Rules of Professional Conduct, Rule 8.4(e), a lawyer should not state or imply an ability to influence a government official, i.e., judge. Further, a judge under the Code of Judicial Conduct has to be aware of creating appearances of impropriety. The Pennsylvania Code of Judicial Conduct, Rule 1.2, requires promoting confidence in the judiciary. It requires a lawyer to avoid impropriety and the appearance of impropriety. Rule 1.3 precludes avoiding abuse of the privilege of the office. A judge must protect the position they serve. Therefore, the familiarity that one would show among friends or fellow members of the bar, no longer exists. There is a wall between the judge and the lawyers, and that wall has to be protected.
Therefore, one has to resist the urge—if a former friend who is now a judge says call me by my first name. The judge should not be telling lawyers that and lawyers should not be agreeing to do so, however flattering it may appear. Being a judge is not easy and one gives up quite a bit of freedom and friendships. But, it’s the price to pay for this extremely important position in society. Sometimes one feels that the judiciary is the only democratic institution that still works. That includes the jury system within the judiciary. It is absolutely important that lawyers do everything they can to preserve the integrity of the judicial system and the dignity of it. Therefore, calling a judge in the courthouse by their first name is just not acceptable and is highly improper.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.