Getting Back on Track After a Disciplinary Suspension
| Publication year | 1994 |
| Pages | 2559 |
| Citation | Vol. 23 No. 11 Pg. 2559 |
1994, November, Pg. 2559. Getting Back on Track After A Disciplinary Suspension
The day you have dreaded has finally arrived. It is a Monday morning, and you or your lawyer gets a call from the Colorado Supreme Court clerk saying that the court's written opinion suspending you from the practice of law for ethical violations has been issued that morning. Tomorrow your private agony will become public.
Even though you've known about your imminent suspension for several weeks, you don't sleep very well that night. The following morning you read a brief summary of four disciplinary opinions, including yours, in the local section of the paper. You wonder how many people will see the article---your friends, neighbors, in-laws, the clerk at the video store. You assume everyone in the legal community will find out eventually, because The Brief Times Reporter and, later, Pacific Reporter Second and The Colorado Lawyer will carry the opinion in full.
In a way, publication is a relief. Now you can start to put this dark episode behind you and get on with your professional life. Before you can do that, however, you must comply with the various conditions of suspension and reinstatement set forth in the Colorado Supreme Court's order of suspension and in Rules 241.21 and 241.22 of the Colorado Rules of Civil Procedure. Dealing with those rules is about the last thing you want to do now, but you have no choice. Unless the court orders otherwise,(fn1) you have thirty days from the date of the order before your suspension goes into effect, and your professional career should get back on track if you follow those steps.
1. Pay the Costs of the Disciplinary Proceeding. The attorney should pay the costs assessed against him or her in the disciplinary proceeding. Usually the Colorado Supreme Court's order will direct the attorney to pay the Grievance Committee within thirty days of the date of the order.
2. Notify Other Jurisdictions. Within ten days of the effective date of suspension (usually forty days from the date of the suspension order), every other jurisdiction before which the attorney is admitted to practice law should be notified of the Colorado Supreme Court's order of suspension.(fn2) This includes other states and federal courts, and it makes no difference under the rule whether the attorney is on active or inactive status in a given jurisdiction. It is a good idea to contact the clerk of each jurisdiction to determine the proper person to whom such notices are to be sent. A bankruptcy court may not be considered to be a separate jurisdiction from the corresponding U.S. District Court and, consequently, notice to the latter should obviate notice to the former. However, if notices are being sent out anyway, one might as well be sent to the bankruptcy court. A sample notice of this kind is reprinted in Appendix A to this article.
The Committee Counsel is responsible for publishing notice of the suspension in a newspaper of general circulation in each judicial district where the attorney maintains an office. The Clerk of the Colorado Supreme Court is responsible for transmitting a certified copy of the suspension order to all courts in the state.(fn3)
3. Wind Up Your Practice. The attorney under suspension should not accept new legal employment or a retainer for new legal employment. Until the suspension goes into effect, the attorney may wind up any cases or other legal matters outstanding on the date of the suspension order, provided the client's consent has been obtained after full disclosure of the length and nature of the attorney's suspension.(fn4)
One good way to wind up pending matters is to call the client when the suspension order comes out and explain the situation candidly. The suspended attorney should offer to try to complete the outstanding matter within the next thirty days. If the client agrees, a letter should be sent to the client referencing the conversation, describing the nature and effect of the suspension order (perhaps even enclosing a copy of the order), and asking the client to sign and return a copy of the letter consenting to the suspended attorney's effort to complete the matter within the next thirty days.
The attorney should be realistic about whether the work can be completed within thirty days because, if not, it is to everyone's benefit to transfer the file to another lawyer as
soon as possible. Just as when a lawyer must withdraw from representation for any other reason, the attorney may refer clients to other recommended lawyers.
4. Don't Practice Law. Winding up a law practice means not practicing law, but it does not mean the lawyer must take a vacation from the profession entirely. Losing complete touch with the practice of law is neither necessary nor desirable, particularly considering that lawyers suspended for more than one year must demonstrate "efforts to maintain professional competence" during the suspension period.(fn5) One way to keep (or become) current in the practice is to work as a law clerk, an accepted arrangement in many jurisdictions,(fn6) including, by inference, Colorado.(fn7) The attorney must be careful, however, not to engage in the practice of law during the suspension period. This is a problem that has gained the attention of disciplinary prosecutors(fn8) and may subject the suspended lawyer to punishment for contempt of court or further discipline.(fn9)
There is no bright-line test on what constitutes the "practice of law." The Colorado Supreme Court has stated:
One who acts in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counselling, advising and assisting him in connection with these rights and duties is engaged in the practice of law.(fn10)
Some activities are clearly improper for a suspended attorney, such as preparing legal documents for a client without the supervision of a licensed attorney,(fn11) counseling and advising a client in legal matters(fn12) and representing a client at a judicial proceeding(fn13) or at the deposition of the client.(fn14)
There should be no direct contact with clients or courts,(fn15) and minimal or no contact with opposing counsel who, after all, are the most likely persons to call such conduct to the attention of disciplinary authorities. In contrast, legal research under the supervision of other lawyers seems to be clearly appropriate, if not encouraged.(fn16) Likewise, drafting briefs and pleadings is probably appropriate as long as it is done under the supervision of another lawyer.(fn17) This may also be true of taking notes at a non-client deposition in which the client has little or no interest and which does not require the suspended attorney's active participation.(fn18) Engaging in the practice of law does not depend on receiving payment for services rendered.(fn19)
Provided these guidelines are followed, there should be no reason why a suspended attorney cannot continue to work as a law clerk in the office supplied by his or her firm, and receive an ordinary salary without directly sharing client fees.(fn20) However, a suspended lawyer may not associate with another lawyer solely as a device to carry on the suspended lawyer's practice during the suspension period.(fn21) If there is any doubt about whether an activity will cross the line of practicing law, it is wise to avoid it---it is not worth risking problems with reinstatement.
On the other hand, the suspension period may be the perfect time to seize the therapeutic opportunity for a sabbatical. It also may be an opportune time to seek treatment, particularly if a psychological or substance abuse problem led to the suspension in the first place. Depending on the length of the suspension, the attorney may decide both to work as a law clerk and later to get away from the practice entirely for a while.
5. Notify Clients in Pending Matters. The suspended attorney should notify all clients whom he or she represents in pending matters of the suspension and that the clients should promptly obtain substitute counsel. The suspended attorney also should deliver to the client "all papers and property to which the client is entitled" unless the client requests that the papers be transferred to substitute counsel or another lawyer in the suspended attorney's office.(fn22)
The notice must be in writing and sent by certified mail, "promptly" after the order is issued and, in any event, within ten days of the effective date of the suspension (see number 8 below). At a minimum, the notice must advise the client (1) of the suspension order, (2) that the suspended lawyer cannot represent the client after the effective date of the order and (3) that the client should seek legal services elsewhere.(fn23)
As the sample letter reprinted in Appendix B reflects, the rules do not prohibit a suspended attorney from conveying more personal sentiments in the notice and placing the suspension in a proper context consistent with the truth. One question that may arise here is, Who are the suspended attorney's clients and who are clients of his or her firm? As a rule of thumb, a "client whom [a lawyer] represents" should include those clients whose matters the suspended lawyer either originated or were substantially involved in, particularly if there is meaningful client contact. Error should be made on the side of inclusion. For example, the suspended attorney should probably contact all clients whose pleadings or other court papers the attorney has either signed or on which his or her name...
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