In the matter of Stephen Hrones, 457 Mass. 844 (2010), the respondent attorney was found to have improperly formed a business relationship with a non-lawyer and improperly assisted a non-lawyer in the unauthorized practice of law. The court affirmed that a suspension for one year and one day was an appropriate disciplinary sanction for the attorney.
The non-lawyer was a law school graduate who had not passed the bar exam, but had significant experience with employment discrimination cases and had appeared before the Massachusetts Commission Against Discrimination (MCAD). In contrast, the respondent had been a practicing lawyer and member of the Massachusetts bar for almost 30 years, but had “little or no experience” with discrimination claims. The two worked out an arrangement whereby the respondent gave the non-lawyer office space, support staff, law firm letterhead and business cards (identifying the non-lawyer as a “paralegal”), and authorization to use the respondent’s law license and name to file and prosecute cases before the MCAD. In exchange, the non-lawyer generated all the discrimination claim business and shared one-third of the fees earned with the respondent.
The Supreme Judicial Court noted the respondent gave the nonlawyer authorization to sign his name on appearance forms, administrative complaints, and other filings before the MCAD without reviewing the documents. The non-lawyer marketed the practice, exercised sole discretion in deciding to accept discrimination cases, determined fee arrangements, filed complaints, drafted pleadings, conducted discovery, counseled clients, and settled cases – all with “virtually no supervision” by the respondent or any other attorney in the respondent’s firm.
The practice began to break down after about two years, when, in June 2003, the MCAD assessed sanctions against the respondent in connection with the non-lawyer’s conduct. The nonlawyer hid a September 2003 notice requiring payment of sanctions, but in November 2003 the respondent received notice that he was suspended from practice before the MCAD for one year for failure to pay the sanctions. Despite his receipt of that notice, the respondent did not terminate his relationship with the non-lawyer or inform discrimination clients of the suspension. In October 2004, the respondent was notified of an untimely complaint the non-lawyer had filed in Federal District Court in the respondent’s name. Between February 2004 and October 2004, the respondent received complaints of neglect on behalf of the non-lawyer; the complaints were filed with the Office of Bar Counsel by the non-lawyer’s clients. Still the respondent took no action. It was only after the respondent learned in October 2004 that the non-lawyer had breached their agreement by failing to remit a client’s fee payment that he “fired” the non-lawyer and informed clients of the change in the practice.
In his defense, the respondent argued that at most he had failed to supervise the work performed by his paralegal – a lesser offense than assistance with the unauthorized practice of law. The Supreme Judicial Court disagreed, stating “the appropriate inquiry is whether the actions by [the non-lawyer], viewed individually or as a whole, are actions only a lawyer is entitled to perform on behalf of another in the circumstances.” The court held the non-lawyer’s actions were the “practice of law,” and noted, although some lawyerly functions can be properly delegated to a paralegal, that work must be supervised by an attorney. The court distinguished a case in which an attorney was held to have failed to supervise support staff (but not to have assisted in the unauthorized practice of law) when he allowed a paralegal to handle a client’s tort claim. That case, the court said, involved a single instance, and the paralegal did not file actions in the attorney’s name. In contrast, the Hrones case involved an entire practice with more than 40 clients, all of whom were handled solely by the non-lawyer.