Legal Ethics Opinion #1514
Aiding the Unauthorized Practice of Law: Law Firm Employing
Revoked Attorney After Purchasing His Computerized Collection
Program
You have presented a hypothetical situation in which Attorney A,
for a number of years, has represented numerous clients in
collection matters (the "Collection Clients"). A majority of the
Collection Clients are residential landlords. As a consequence
of professional misconduct, Attorney A has surrendered his
license to practice law. The professional misconduct did not
involve any of the Collection Clients and occurred well after his
initial representation of any of them.
In furtherance of his collection practice, Attorney A designed
and developed an extensive and complex computer program for the
processing of claims (the "Collection Program"). The records of
the Collection Clients are contained in a computer data base
created and maintained using the Collection Program. You
indicate that, in addition to specific information related to the
Collection Clients, this data base includes more that 20,000
debtor records, information related to debtor records, notes of
debtor contracts, personal history and information, records of
amounts claimed and payments received, records of actions taken
in various courts, including judgments entered, post-judgment
actions taken, judgments satisfied, etc.
You further indicate that, in addition to the storage and
maintenance of debtor information, the Collection Program prints
various forms used in the collection process. These include
Motions for Judgment, Unlawful Detainer and Civil Warrants,
Summons in Garnishment, and various pleadings (Bills of
Particular, Affidavits, Motions, Notices, etc.). Numerous letters
and miscellaneous forms are also printed as well as periodic
accounting and other reports to clients. The Collection Program
also maintains docket control for cases pending before various
courts.
You advise that, following surrender of Attorney A's license, a
majority of the Collection Clients have retained Law Firm B (the
"New Firm") to represent them in connection with the collection
of claims previously handled by Attorney A, as well as the
collection of new claims. The New Firm has its own substantial
collections practice and maintains its own, separate offices.
You also advise that there had been no prior association between
Attorney A and the New Firm.
Finally, you indicate that, after surrendering his license,
Attorney A sold the Collection Program and various items of
computer hardware and software to the New Firm. In addition, in
compliance with the wishes of the Collection Clients now
represented by the New Firm, Attorney A has transferred to the
New Firm that portion of the data base relating to those clients'
claims.
You have asked the committee to opine whether, under the facts of
the inquiry, it is improper for the New Firm to employ Attorney A
to perform any of the following functions (the "Enumerated
Functions") with respect to the Collection Clients, if they are
performed under the direct supervision of one of the New Firm's
licensed attorneys:
a. Maintain, service and update the computer software
comprising the collection program and the data base;
b. Train personnel of the New Firm in the operation of the
Collection Program;
c. Utilize the Collection Program to perform clerical
duties such as data entry for new claims entered into
the data base and maintenance and updating of existing
debtor records already contained in the data base;
d. Utilize the Collection Program to perform clerical
duties involved in the preparation of Warrants,
Garnishments, and other legal papers, which would be
reviewed, signed, and filed by one of the attorney
members of the New Firm;
e. Utilize the Collection Program to perform clerical
duties involved in the preparation of pleadings (Bills
of Particulars, Affidavits, Motions, Notices, etc.),
which would be reviewed, signed and filed by one of the
attorney members of the New Firm;
f. Communicate with personnel of the Clerk's Offices in
the various jurisdictions in which actions are pending
regarding dockets, court dates, etc.;
g. Communicate with personnel employed by the Collection
Clients regarding factual matters relating to the
status of pending claims, court actions, dockets, etc.;
. Perform routine duties normally associated with debt
collection which are not prohibited to a lay collection
agency, i.e., preparation of statements of account,
skip tracing, direct contact with debtors by mail or
telephone to solicit payments, gather information,
etc.;
. Prepare routine accounts of money collected on behalf
of the Collection Clients, including calculation of
fees earned by the New Firm and preparation of bills
for same.
You have also asked the committee to opine whether, if the
performance of any of the enumerated functions on behalf of the
Collection Clients is improper, Attorney A may be employed to
perform them with respect to the New Firm's other clients.
The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 3-101(C), which states that a lawyer, law firm or
professional corporation employing a lawyer as a consultant, law
clerk or legal assistant when that lawyer's license is suspended
or revoked for professional misconduct shall not represent any
client represented by the disciplined lawyer or by any lawyer
with whom the disciplined lawyer practiced on or after the date
of the acts which resulted in suspension or revocation.
As to your first inquiry, the committee is of the opinion that
the functions enumerated under (a) through (c) are typically
performed by a (non-lawyer) computer consultant. This is
especially true here, since Attorney A developed the Collection
Program to be used by the New Firm. The committee is of the
further opinion that the functions listed under (d) through (i)
are commonly performed by a law clerk or legal assistant. The
committee recognizes that the new firm would be representing
clients formerly represented by Attorney A after the date of the
events leading to Attorney A's license surrender. Thus, the
committee opines that it would be improper, under DR 3-101(C),
for the new firm to employ Attorney A to perform these functions,
even if under the direct supervision of an attorney in the firm.
Regarding your second inquiry, the committee assumes that the
other clients have not been represented by Attorney A on or after
the date of the acts which resulted in suspension or revocation.
The committee opines, then, that it would not be improper for the
new firm to employ Attorney A to perform the enumerated functions
with respect to the new firm's other clients, provided those
functions are performed only under the direct supervision of a
licensed attorney in the firm. See DR 3-104.
Committee Opinion
April 12, 1993
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