Administrative suspensions -another far too often route to UPL problems.

I’ve long been torn about lawyers losing their license and ability to practice law through administrative suspensions.

In Tennessee, for example, this can happen to a lawyer through failing to get your required CLE hours (TN requires 15 annually), or failing to pay your registration fees, or failing to turn in the necessary forms about compliance with certain trust accounting requirements.   There are other ways, but you get the drift; they almost all involve failures that are primarily about not keeping up with paperwork or missing repeated deadlines.  Thus, at some level, it seems like a harsh result to lose the right to practice for a petty offense.

Yet, in most situations, a lawyer has to be really, really delinquent, forgetful, or careless and miss multiple opportunities to correct the oversights before an administrative suspension actually comes to pass.  So, given that you are talking about a profession in which compliance with administrative details and deadlines is a pretty fundamental skill set and can make or break a client’s case, then it can be hard to argue against administrative suspensions as being fair.

Where it really becomes unfortunate is when the lawyer subject to the administrative suspension either does not know or does not care he is suspended and continues to handle client matters and places not only himself but his clients in jeopardy.  The jeopardy for the lawyer is disciplinary charges in the nature of engaging in UPL can be heaped on top of the administrative suspension.  The jeopardy for the client can be questions about whether the actions taken by the suspended lawyer are null and void, and potential questions about whether the privilege applies to dealings or not.

An instance (though admittedly a pretty extreme one) of a lawyer ending up disciplined for UPL while administratively suspended caught my attention thanks to a write-up earlier this month by the folks at the Legal Profession Blog.  The New Jersey Supreme Court on October 7 accepted the recommended decision from the Disciplinary Review Board and issued a reprimand against a lawyer for representing a New Jersey business 8 years after having her New Jersey license administratively revoked.

The May 31, 2016 decision of the DRB, involving a lawyer named French, can be found here.  It caught my fancy not only as an example of the time delays often involved before an administrative suspension kicks in but also because it offers parallels to a recent bad Minnesota UPL decision I wrote about earlier this year.

French, also licensed in New York where she apparently has been working in house for an accounting firm for almost 20 years without incident, was licensed in New Jersey back in 1991.  It is possible she never actually paid the required annual registration/assessment fees in New Jersey, but eventually her law license in New Jersey administratively revoked in 2005 on the basis that she had failed to pay the annual assessment for seven consecutive years.

French testified she was unaware of the revocation and actually unaware of the need to pay an assessment — she says her original law firm never told her.

This disciplinary mess came about when she proceeded to do a favor for a friend in a budding unfair competition/breach of non-compete matter involving two salons.  Interestingly, she went to the trouble of creating her own separate private letterhead for purposes of sending a cease and desist letter for the company owned by her friend, and (unsurprisingly) it was counsel for the other salon that brought to French’s attention the fact that her New Jersey license had been revoked.

Ultimately, the DRB decided only a reprimand (which is a lesser sanction in NJ than a censure) should be imposed despite being “troubled that respondent made no effort, for over fourteen years, to ensure her compliance with [assessment] obligations, and no effort, for over twenty years, to verify her status as a New Jersey attorney.”  French was certainly helped by the finding that her testimony was credible on her actual mens rea of just not knowing.  And the credibility of her testimony was helped by the fact that she had always kept her New Jersey CLE obligations up to date over the years.

Interestingly, two of the members of the DRB voted to impose a three-month suspension against the lawyer, which loyal readers (or NJ lawyers) will remember is the kind of suspension you get in New Jersey for acts of violence.

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