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When "not practising" is practising.

Editorial Staff

A fascinating case in Massachusetts, USA, has defined, in that state but with persuasive force elsewhere, the question of when a person is "practising law." It has widespread implications: struck off or suspended lawyers are effectively banned from earning a living from their accumulated skill and knowledge while lay advisers are free to offer the same services even without the same skills and experience.

The case came before Mr Justice Botsford in the state court in March last year. The Massachusetts Board of Bar Overseers, with his consent, barred Joseph B. Shanahan, Jr. in January 2002 following his conviction in Federal court for bankruptcy fraud. His disbarment expires on 24 January 2013.

Shanahan performed a range of services for clients using his expertise and knowledge but did not perform any services which were reserved for admitted lawyers. Indeed, for those services requiring a licensed lawyer, he specifically refused to deal with those things and referred his clients to lawyers who were properly admitted to practice.

Shanahan advertised himself as "an expert" in various fields, mostly relating to planning applications. In his advertisement he did not refer to himself as a lawyer nor "Esq.," the standard suffix used in the USA for lawyers. However, he did refer to his educational qualification, a doctor of jurisprudence, or JD. In an affidavit, he said that he always told his clients that he was not a qualified lawyer due to disbarment.

Counsel for the Bar, known somewhat confusingly as the Bar Counsel, applied to the Court that Shanahan be held in contempt, claiming that he was practising law.

"Under S.J.C. Rule 4:01, § 17 (1), (3), and (7), a disbarred lawyer is prohibited from engaging in the practice of law or in paralegal work, respectively. Bar counsel argues that the respondent violated the judgment of disbarment and should be found in contempt by "(1) holding himself out as a lawyer, and (2) engaging in the practice of law by giving legal advice to clients seeking permits and variances in the town of Chelmsford and representing his clients' interests before town boards in Chelmsford." I consider these arguments separately."

The Bar argued that "A disbarred attorney's holding himself out as being licensed to or engaged in the practice of law is, by itself, sufficient for a finding that he has engaged in the unauthorized practice of law. See Matter of McInerney, 389 Mass. 528, 536 n.l 1 (1983)." But, said the Judge, the advertisement described above did not amount to holding himself out as a lawyer. The Judge said "Nothing has been presented to suggest that the Suffolk University J.D. degree listing is not accurate. I read it as a statement of educational credentials; it does not indicate anything about practicing law, or of being a member of the bar, and the "consulting" listing by itself does not suggest the practice of law either."

The case was, said the Judge, to be contrasted to that of Dawkins (2000) where a suspended lawyer maintained a telephone listing and was proved to have accepted a fee in respect of legal fees relating to a criminal matter.

Where the Judge admitted difficulty was in the same area as so many judges before him: "Because of the difficulty in doing so, this court has never delineated the exact contours of what amounts to the practice of law." But he said that there has long been a broad definition: ""[T]he practice of directing and managing the enforcement of legal claims and the establishment of the legal rights of others,... the practice of giving or furnishing legal advice as to such rights and methods and the practice ... of drafting documents by which such rights are created, modified, surrendered or secured." That was in the matter of Shoe Manufacturers Protective Association, 1936.

The Judge found that Shanahan's work including making presentations to various local boards in Chelmsford including, for example, the planning board, "demonstrate that he is applying his knowledge of statutory and town bylaw requirements related to permitting, conservation, property subdivision and conveyancing to address the specific needs of his various clients. They indicate that the respondent is directly engaged in representing his clients - and appearing before the boards as their representative - in connection with their legal rights and obligations concerning their property; two sets of minutes separately state that "Mr. Shanahan advised the Board [of Appeals] that he is preparing his case for litigation."

The Judge had no difficulty in finding that Shanahan's activities fell within definition in the Shoe Manufacturers case. The judge went even further: "While the respondent may not draft pleadings or purchase and sales agreements for his clients, he is clearly applying his professional legal training in assisting them to navigate the permitting process and advising them on the best course of action to secure the necessary permits and project approvals. In short, the respondent "invoke[s] his 'professional judgement in applying legal principles to address [his clients'] individualised needs," (Re Chinko, 1998).

The scope of the case is demonstrated by Shanahan's own arguments as described by the Judge : "The respondent argues that many non-lawyers - engineers, architects, landscape designers, environmental scientists, and developers - provide exactly the same types of services as he does in the context of permitting processes; that they regularly appear before local boards on behalf of clients; that these professionals are clearly not engaged in the practice of law; and that therefore, he, too, is not engaged in practising law when performing the same services. I recognise - as has the court for a very long time, see, e.g., Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 181-183 (1943) - that without violating the proscription against the unauthorised practice of law, many non-lawyer professionals use the law in working with their clients and perform services that lawyers also perform. But the respondent is a lawyer, not a non-lawyer professional. An activity that may not constitute practising law when performed by another category of professional may well become the practise of law when a lawyer, disbarred or not, performs it."

The Judge therefore found that Shanahan "has engaged in the practise of law" in breach of the Code.

Shanahan was supposed to come out of disbarment on 24 January 2010. Because of his finding, the Judge was bound to extend the period before which Shanahan could apply for readmission. The Bar wanted the period extended by eight or even ten years. The Judge refused: instead he increased the period by three years.

In the meantime, at least in Massachusetts, the job opportunities for disbarred or suspended lawyers are close to zero. The ruling appears to include even the engagement as an in-house contracts manager in a commercial concern.

That is a remarkably harsh punishment, to take away a person's livelihood. Arguably, he would be better off in jail where, at least, he would not have to worry about earning a living.

And all the while, those with different skill sets are able to do the work the lawyer is best able to do.

Something, somewhere, isn't right.

But what is not right might be most indicated by the Judge's comments which he puts in "footnotes" and are, therefore, obiter. He notes that the parties agreed the the Bar Counsel had made contact with Shanahan in 2006 expressing an opinion that the provision of such services was in breach of the Code. Shanahan "he told her that he would not represent individuals before local boards again until he heard back from bar counsel or "he had time to look into the issue and make an informed decision" himself. He further states in the affidavit that after several years of observing firms and individuals who were not attorneys appear on behalf of clients before municipal boards to present real estate development projects, he concluded "that there was no requirement that an individual must be an attorney, or that a firm or association include an attorney, in order to provide such services at local, state, or federal levels. Comfortable in that conclusion, I opened my own office for that purpose in May of 2009." However, "Bar counsel's opinion is not a substitute for the opinion or judgment of a court, but the respondent was aware at least that the issue of the propriety of his conduct had been squarely raised. Yet he did not undertake to pursue the issue further with bar counsel, or seek guidance from the court. Rather, by his account, he relied solely on his own untested belief that his activities did not qualify as practising law because he observed some non-lawyers performing similar services. This is a cavalier response to bar counsel's communication that almost rises to wilful blindness on the respondent's part."

The Judge therefore feels to a degree aggrieved that Shanahan did not make an application to the Court for a determination of the point. Of course, the result may have been the same but, as an applicant not a respondent, Shanahan might have been received more favourably. So the lesson is to apply for a declaratory order if the rules applying to a professional appear to be incongruous, as they undoubtedly do here.


Quotes are from the Judgement at http://www.mass.gov/obcbbo/bd0...