Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct
Date of Opinion:
06/07/2000
Opinion Number:
99-16
Title:
GUIDELINES FOR IOWA LAWYERS WHO HAVE BEEN SUSPENDED
Opinion:
Suspended lawyers may be found in contempt of Court, denied reinstatement, or further disciplined for practicing law or violating the order of suspension while under suspension.
1.
You
must
comply
with the requirements contained in Court Rule 118.18. You should review this rule immediately.
2. Any specific requirements expressed by the Court in the order of suspension must be complied with. Read it carefully.
3. During suspension you must not practice law, nor hold yourself out as a lawyer or one who can do anything which constitutes the practice of law.
The practice of law has not been clearly defined either by statute or by Court decision though references thereto are in Court Rule 121(i)(4) and, 123.7
In
Bump v. District Court of Polk County
, 232 Iowa 623, 5 N.W.2d 914 (1942) the Iowa Court said:
“A definition is given in 7 C.J.S., Attorney and Client, § 3, p. 703, where it is stated: 'The general meaning of the term, "practice law" or "practice of law," is of common knowledge, although the boundaries of its definition may be indefinite as to some transactions. As generally understood, it is the doing or performing of services in a court of justice, in any manner depending therein, throughout its various stages, and in conformity with the adopted rules of procedure; but it is not confined to performing services in an action or proceeding pending in courts of justice.
* * *
“The definition in 5 Am.Jur. 262 states: 'The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and, in addition, conveyancing. In general, all advice to clients, and all actions taken for them in matters connected with the law, incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy or insolvency proceedings, and conducting proceedings in attachment and in matters of estates and guardianship have been held to constitute law practice, as do the preparation and drafting of all kinds of legal instruments, where the work done involves the determination by a trained legal mind of the legal effect of facts and conditions. . ..'”
4. Obviously the suspended lawyer should stay away from his law office, remove his name from signs in suspensions of more than three months, and not reorder publications holding him out as a lawyer and avoid appearances which would imply his continuing practice of law.
5. Illustrative cases in Iowa are
Committee on Professional Ethics and Conduct v.
Gartin
, 272 N.W.2d 485 (Iowa 1978) and
Committee on Professional Ethics and Conduct v. Rauch
, 508 N.W.2d 628 (Iowa 1993). These should be reviewed by you.
The Iowa Court appears to have ruled out all pro se activity by a suspended attorney.
6. See
Committee on Professional Ethics and Conduct v. Toomey
, 236 N.W.2d 39 (Iowa 1975), for a delineation of proscriptions, and
Committee on Professional Ethics and Conduct v. Mahoney
, 402 N.W.2d 434 (Iowa 1987), particularly concerning preparation of tax returns and conducting labor negotiations.
7. You may do paralegal work in compliance with Court Rule 118.12.
8. For additional information see:
Appearance, on another’s behalf, before an administrative board or commission. In
Petition of Eisenberg
, 291 N.W.2d 565 (Wis. 1980).
In
State v. Blase
, 494 P.2d 1224 (Kan. 1972), the Kansas Supreme Court held that a suspended attorney could not represent the interests of another before a board of county commissioners.
Disciplinary Proceedings against Yanagiwa
, 650 P.2d 203 (Wash. 1982). Noting that immigration is a legal matter and that the attorney necessarily drew upon his legal knowledge in the appearances, the Washington Supreme Court found such representation to be the practice of law.
The North Dakota Supreme Court has ruled that a suspended attorney violated the suspension order by incorporating two businesses.
Application of Christianson
, 215 N.W.2d 920 (N.D. 1974). The Florida Supreme Court has reached the same conclusion. In determining that an accountant was engaged in the unauthorized practice of law the court wrote:
“We are of the view that the preparation of charters, bylaws, and other documents necessary to the establishment of a corporation, being the basis of important contractual and legal obligations, comes within the definition of the practice of law . . .”
The Florida Bar v. Town
, 714 So.2d 395 (Fla. 1965).”
Negotiating the settlement of cases;
State v. Ledske
, 407 P2d 250 (Ore. 1965),
cert. denied
, 384 U.S. 943,
reh’g denied
, 384 U.S. 1028.
See also In re Bodkin
, 173 NE2d 440 (Ill. 1961) (negotiation of a personal injury settlement);
In re Page
, 257 SW2d 679 (Mo. 1953).
NOTE
: During suspension the CLE Commission does not send out its usual annual forms but you may attend CLE-eligible seminars. If you plan to apply for readmission such attendance is desirable.
This is not intended to list all practices which might be proscribed. It is a collection of examples which have been so found and there probably are numbers of others. It is meant only as guidelines.