Be aware of your jurisdiction’s limits on what a “retired” lawyer can and cannot do, and obey them — or risk being tagged for the unauthorized practice of law. And, oh yeah — communicate politely. That’s a dual lesson a lawyer in Illinois may be about to learn, according to a disciplinary complaint filed in December.
The lawyer was admitted to practice in 1965. In January 2013, he registered as “inactive,” which allowed him to pay a reduced yearly registration fee, but made him ineligible to practice. A few months later he reactivated his license. Then, in December 2014, the lawyer registered as “retired,” which again made him ineligible to practice.
Nonetheless, in January 2015, the lawyer agreed to represent a client on a post-dissolution child-visitation petition, pro bono. He told opposing counsel he represented the client, and engaged in negotiations over a period of about three months. Two days before the initial court date, the lawyer revealed to opposing counsel that he was retired, and therefore no longer appeared in court, “but hoped that the parties would be able to settle matters out of court.” Opposing counsel then told the lawyer that if he was on retired status, “he was not authorized to practice and she could no longer speak to him regarding the matter.”
“Good … Luck, Sweetie.”
The lawyer persisted in trying to settle the matter; opposing counsel again refused to participate. That apparently touched a nerve. The lawyer e-mailed opposing counsel, including the following:
“Done! You persuaded me. I am fucking done communicating with youse …lawyer babe. … GOOD FUCKING LUCK, SWEETIE!!!—stanley.”
Based on this conduct, the state Attorney Registration and Disciplinary Commission charged the lawyer with unauthorized practice of law (Rule 5.5); dishonesty, fraud, deceit and misrepresentation, for failing to disclose his registration status (Rule 8.4(c)); and using means of representing the client that had no substantial purpose other than to embarrass and harass, for sending his “Good Luck” e-mail (Rule 4.4(a)).
There is other misconduct charged in the complaint as well, involving representing various family members while on inactive status.
There are a couple take-aways from this still-pending disciplinary case. First, forming an attorney-client relationship doesn’t depend on payment. Under Illinois rules, it doesn’t matter whether you accept payment for your legal services; to provide those services, you must be authorized to practice.
Second, each state has authority to regulate lawyers practicing within its borders; this has resulted in disparate practice rules relating to “retired” lawyers, “inactive lawyers,” and similar kinds of bar registration status.
In my home state of Ohio, for instance, our Rules for the Government of the Bar make registration as “retired” irrevocable, and strip a “retired” lawyer of the ability to practice. With that registration status, you can’t be listed as “of counsel,” or otherwise held out as being able to practice in Ohio, and violations constitute unauthorized practice.
In New York, in contrast, lawyers registered as “retired” are permitted to practice by statute, but they can’t accept compensation, as explained in Formal Opinion 2005-06 of the Association for the Bar of the City of New York Committee on Professional and Judicial Ethics.
Last, knowing the ins and outs of your registration status and its implications isn’t enough. You should also talk nicely to opposing counsel, clients, judges, and everyone you come in contact with.
The license you save may be your own.