Defining the ‘Practice of Law’ After ‘Matter of Brandes’

Defining the 'Practice of Law' After 'Matter of Brandes' by Chris McDonough

This article was published in the NYLJ.

Joel Brandes was disbarred by the Appellate Division, Second Department on April 28, 2002. After waiting the required seven years, he first applied for reinstatement in 2009. That application was denied in an order which merely stated that he did not possess the character and fitness to practice law. Important to this tale is the fact that on this initial application he revealed that he was doing paralegal work for New York attorneys over the Internet from his home in Florida.1

A second application for reinstatement was filed by Brandes in 2010, again revealing that he had been performing paralegal services for attorneys from his home in Florida. This application went before a subcommittee of the Committee on Character and Fitness. At the hearing, he was asked about his paralegal business. The subcommittee recommended reinstatement, noting: “Since Petitioner never spoke to or met a client and only dealt with attorneys, the Petitioner did not violate any New York Disciplinary Rules applicable to disbarred attorneys.” However, the full Character Committee voted 12-11 to deny reinstatement because his website did not state that he was not an attorney—although his website prominently stated that Joel R. Brandes Consulting Services was not a law firm and did not give legal advice. In a decision dated December 17, 2012, the court, inter alia, denied him reinstatement in a one-line decision stating that he did not possess the character and fitness to practice law.

Third time’s a charm? No. In November 2013, Brandes again filed an application for reinstatement. In this application, he made it clear that he was no longer in the paralegal business and had removed all references to paralegal services from his website. This application was referred to Character and Fitness to investigate and report on Brandes’ “current fitness to practice law, including but not limited to, his future intentions with regard to the paralegal services portion of his Internet business.”

This time the Character Committee recommended reinstatement. However, the Appellate Division denied Brandes reinstatement on the ground that he violated the order of disbarment, because during the period when he had been operating his Internet paralegal business, he engaged in the practice of law, holding that because he was “a noted authority and expert on New York family law and divorce” the giving of advice to an attorney constituted the practice of law, as “Mr. Brandes in so doing, exercised professional judgment directed at the legal problem of a particular client.” The court also found that because Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services, his drafting briefs and litigation papers for an attorney “can be deemed to be performing legal services for a client, namely, the attorney for whom he drafted the brief and documents.”

Brandes was granted permission to appeal to the Court of Appeals, which, after a lively oral argument, issued its decision on November 1, 2016, in which the court “punted.” Matter of Brandes, 2016 WL 6427680, 2016 N.Y. Slip Op. 07111. Instead of addressing the precedent which has evolved regarding what constitutes the “practice of law,” the Court of Appeals affirmed the Appellate Division decision, stating that its standard of review was “limited to whether the Second Department abused its discretion” and found that “because there was record support for the court’s decision, there was no abuse of discretion in denying the reinstatement application.” Id. (citing, in part, Matter of Anonymous, 79 N.Y.2d 782 (1991)).

UNCLEAR DEFINITION

What constitutes the practice of the law in a particular jurisdiction is a legal matter for determination by the courts of that jurisdiction. ABA Opinion 198 (1939). New York has been hesitant to clearly define the practice of law or state with certainty what a suspended or disbarred attorney may or may not do within “the law.”

Judiciary Law §484 and §478 restrict the practice of law to admitted attorneys. Neither statute defines the “practice of law,” nor do the New York Rules of Professional Conduct. There is little New York case law defining the practice of law, and most of it is limited to prosecution under Judiciary Law §478 and disciplinary matters within the purview of Judiciary Law §90.2

In People v. Alfani , 227 N.Y. 334 (1919), the Court of Appeals held that preparing business legal instruments and contracts by which legal rights are secured constituted the practice of law. It limited Alfani in Matter of Marino, 20 N.Y.2d 176 (1967) to prohibiting drafting of legal instruments for the public.

The Court of Appeals offered a general definition in Spivak v. Sachs , 16 N.Y.2d 163 (1965). It “is settled that the practice of law …includes legal advice and counsel as well as appearing in the courts and holding oneself out as a lawyer.” In addition, it involves the “giving of advice … to … such citizens …, by laymen or lawyers from other jurisdictions.”

Spivak was refined in Matter of New York County Lawyers’ Assn. v. Dacey where the Appellate Division held that the sale of Dacey’s book with legal forms, titled “How to Avoid Probate,” constituted the practice of law. In reversing, the Court of Appeals held that the drafting of documents that create legal rights is not always the practice of law. It adopted Justice Stevens dissenting opinion at the Appellate Division which observed that there was “no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice—the representation and the advising of a particular person in a particular situation.” 28 A.D.2d 161, 173-74 (Stevens, J. P., dissenting), rev’d on dissenting opn. below, 21 N.Y.2d 694) (1967). 

In El Gemayle v. Seaman, 72 N.Y.2d 701 (1988), the Court of Appeals offered that the “practice” of law includes the rendering of legal advice as well as appearing in court and holding oneself out to be a lawyer and that such services must be rendered to particular clients. 

In Matter of Rowe, 80 N.Y.2d 336 (1992), the Respondent published an article while suspended in which he identified himself as “Robert T. Rowe, J.D.” The Court of Appeals held that this did not violate any of the specific prohibitions of Judiciary Law §90(2). It directs suspended or disbarred attorneys to desist and refrain “(1) from practicing law in any form … (3) from giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) from holding himself out in any way as an attorney and counselor-at-law,” as set forth in Judiciary Law §90(2). 

The Court of Appeals held that Rowe’s article did not violate subdivision (1) of the order because the practice of law involves the rendering of legal advice and opinions directed to particular clients. Respondent’s article sought only to present the state of the law to any reader interested in the subject. Inasmuch as it neither rendered advice to a particular person nor was intended to respond to known needs and circumstances of a larger group, its publication did not constitute the practice of law. Nor did the article violate subdivision (3) of the suspension order since he was not giving advice to any particular individual.3

The appellate divisions have held that a non-lawyer may not consult with or prepare legal papers for a client “who is unaware that the employee is not admitted to the practice of law,” Matter of Caracas, 171 A.D.2d 358 (2d Dep’t 1991); a non-lawyer may not try a Housing Court case or draft court complaints, Matter of Mason, 208 A.D.2d 1 (1st Dep’t 1995); a disbarred attorney, employed by a lawyer, may not make “determinations to initiate actions at law and settle collection claims and actions,” Matter of Stahl, 200 A.D.2d 285 (2d Dep’t 1994); and an attorney may not permit a disbarred attorney, employed by him, to affix his name to affirmations included in court papers, Matter of Gajewski, 217 A.D.2d 90 (1st Dep’t. 1995). These decisions offer limited guidance as to what constitutes the “practice of law” as they rest upon the clear language of the Judiciary Law or merely reiterate holdings of earlier decisions. Significantly, none of the decisions distinguish between persons who are not admitted to the New York Bar and suspended or disbarred attorneys. 

WHAT NOW? 

The Second Department held that Brandes engaged in the practice of law by giving advice to another lawyer about a case being handled by that other lawyer, and by drafting briefs and legal documents for him. It stated that Brandes’ intelligence and expertise were factors that transformed that attorney into a client. 

Prior to Matter of Brandes, it was generally accepted that disbarred and suspended attorneys could do legal research, give advice to lawyers, and draft briefs and litigation documents for lawyers. It appears the Second Department has now concluded that Brandes is prohibited from earning a living by doing these things in the future, should he chose to and want to be reinstated in New York. 

The question remains: Is Matter of Brandes limited to its unique facts and applicable only to experts in a particular field of law, or does it apply to all disbarred and suspended attorneys? If the decision is to be read literally, a disbarred and suspended attorney may not perform any services which include giving an opinion or advice to an attorney, including legal research conclusions, brief writing, and document drafting. The decision also raises the question of whether Judiciary Law §90(2) is unconstitutional as a denial of freedom of speech and equal protection, since, on its face, it prohibits disbarred and suspended attorneys from doing things they would be able to do had they not been admitted to the bar in the first place—a question the Court of Appeals did not address. 

So, what may a suspended or disbarred attorney do? The case law prior to Brandes made clear that disbarred or suspended attorneys could perform legal research, drafting, and brief writing since the practice of law required the giving of specific legal advice to a specific person about their particular problem. It now seems that the unauthorized practice of law by suspended or disbarred attorneys includes the giving of any legal advice or opinion to even a licensed attorney — seemingly as informed by the court’s subjective determination of the intelligence of the offeror. 

Endnotes: 

Brandes’ home state of Florida allows disbarred attorneys to do para-legal work. See Florida Bar Rule 3-6. 

Judiciary Law §90(2) requires, inter alia, a disbarred or suspended lawyer “to desist or refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another,” and from “giving to another an opinion as to the law or its application, or of any advice in relation thereto.” 

The Court of Appeals held that as so applied, the suspension order violated Rowe’s constitutional right to speak freely. 

Chris McDonough is a grievance lawyer with The Law Office of McDonough & McDonough, a New York disciplinary defense law firm. The author was counsel for Joel Brandes before the Appellate Division and the Court of Appeals.

Chris McDonough, Esq.
New York Grievance Attorneys: Lawyers for Lawyers
info@newyorkethicslawyer.com
(516) 387-0266

Advertisements

About Chris McDonough

lawyer for lawyers
This entry was posted in Character & Fitness and tagged , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s