Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct
Date of Opinion:
06/08/2004
Opinion Number:
04-07
Title:
ARE STAFF AND SCREENING ATTORNEYS ENGAGED IN THE PRACTICE OF LAW
Opinion:
You are employed full-time by the Iowa Court of Appeals as a staff and screening attorney. You state that the Client Security and Attorney Disciplinary Commission has determined your duties in this position are the practice of law for purposes of Iowa Ct. R. 39.7; therefore, you are not exempt from payment of the annual disciplinary fee. See id. (“A member of the bar of the supreme court who is not engaged in the practice of law in the state of Iowa may be granted a certificate of exemption by the commission, and thereafter no fee or assessment shall be required from such member…”). You note that Iowa Code section 602.1607 (2003) prohibits a full time court employee from “practice as an attorney or counselor of law.” You ask the following:
If we are, as the Commission has decided, engaged in the practice of law because of the nature of our job duties, yet we are prohibited by statute from practicing law, are we not in violation of provisions of the Iowa Code of Professional Responsibility for Lawyers?
In other words, you ask whether your duties as a full time court employee violate your ethical duties to obey the law, in this case section 602.1607, and not to engage in the unauthorized practice of law. See EC 1–5 (lawyer should avoid even minor violations of law); DR 3–101(B) (lawyer shall not practice law in jurisdiction where to do so would violate regulations of profession in that jurisdiction).
The answer to your question turns on whether “the practice of law” referred to in Ct. R. 39.7 is identical with “practice as an attorney or counselor of law” in section 602.1607. The Board believes it is not.
Neither Ct. R. 39.7 nor section 602.1607 has been the subject of a reported court decision. In the absence of case law, the Board defers to the Client Security and Attorney Disciplinary Commission’s interpretation of “practice of law” in Ct. R. 39.7. Thus, the Board agrees that your duties as a staff and screening attorney are the practice of law for purposes of that rule.
The language of the Iowa Rules of Court supports the commission’s broad definition of the practice of law. For example, even judges are deemed to engage in such practice. See Ct. R. 39.7 (“…The practice of law as that term is employed in this chapter includes…to be a judge or one who rules upon the legal rights of others unless neither the state nor federal law requires the person so judging or ruling to hold a license to practice law.”). Another example is the provision in Ct. R. 41.7 that “[a] member of the bar who is not engaged in the practice of law in the state of Iowa as defined in Ct. R. 39.7…may…obtain a certificate of exemption [from continuing legal education].” (Emphasis added.) Chapters 39 and 41 of the Iowa Rules of Court were adopted by the Iowa Supreme Court. The Board doubts the Court intended full time staff and screening attorneys, whose legal knowledge is critical to the performance of their duties, to be excused from continuing legal education. Because rules 39.7 and 41.7 define the practice of law identically, the reasonable conclusion is that full time staff and screening attorneys fall within the rules’ definition of the practice of law.
It does not necessarily follow that a full time staff and screening attorney “practice[s] as an attorney and counselor at law” for purposes of section 602.1607. The Board has not found case law interpreting this statute; however, the Iowa Supreme Court has expressly declined to adopt an all-inclusive definition of the practice of law that applies to every situation. See Committee on Prof’l Ethics & Conduct v. Baker, 492 N.W.2d 695, 701 (Iowa 1992). “Rather [the court] decides each case in this area largely on its own particular facts.” Id.
The Board believes section 602.1607 likely was enacted to avoid conflicts of interest and to ensure that full time attorney-employees of the court are not distracted from their duties by the demands of a law practice on the side. Thus, the statute would prohibit a full time attorney-employee from engaging in the private practice of law or employment as an attorney for an entity other than the court. It would not prohibit staff and screening attorneys from using legal skills to perform duties for the court, notwithstanding such duties are the practice of law for purposes of Ct. R. 39.7 and 41.7. Similarly, Ct. R. 39.7 includes judges within the category of those who practice law for purposes of the rule, even though judges, too, are prohibited by statute from practicing law. See Iowa Code section 602.1604 (2003).
In sum, the Board believes the practice of law for purposes of Ct. R. 39.7 is broader than the scope of such practice for purposes of section 602.1607. Employment as a staff and screening attorney is the practice of law under the rule but not under the statute. Therefore it is the opinion of the Board that your employment with the Court violates neither the law nor the Iowa Code of Professional Responsibility for Lawyers.