Inactive Attorneys: Can They Practice Law?

In California, practicing law while on inactive status is a criminal offense that can result in felony charges. The California Business and Professions Code Section 6126(b) BPC states that individuals can be charged if they are suspended or disbarred and continue to practice law. However, there is no statutory definition of what constitutes practicing law, and penalties for violating this code can vary. While some attorneys may face felony charges, others may receive a slap on the wrist, depending on the specifics of their case.

Penalties for practicing law as an inactive attorney

In the United States, penalties for practicing law as an inactive attorney vary by state. However, California provides a good example of the consequences of practicing law as an inactive attorney.

In California, practicing law without a license is considered an "Unauthorized Practice of Law" (UPL) charge. For non-attorneys, this is usually a misdemeanor, punishable by a fine of up to $1,000, up to six months to one year in county jail, or both. However, if the defendant has been convicted of UPL before, California law requires a minimum of 90 days in jail for subsequent convictions.

The penalties are more severe for former attorneys who have been involuntarily shifted to "inactive" membership in the State Bar. In these cases, UPL is a "`wobbler`" offense under California law, meaning it can be charged as either a misdemeanor or a felony. If charged as a misdemeanor, the potential penalties are the same as for non-attorneys. If charged as a felony, the potential penalties include up to three years in jail and a fine of up to $10,000.

It is important to note that California's definition of "practicing law" is vague and subject to interpretation. Advertising or holding oneself out as an attorney without an active bar membership is also considered UPL, even if no legal services are performed. Additionally, there may be cases where an inactive attorney is employed by another attorney or firm and engages in activities that do not constitute the practice of law, which could serve as a valid defense if criminally charged.

Penalties for practicing law without a license can also include civil and administrative sanctions, such as private or public admonishment, restitution, and prolonged suspension. Ultimately, repeated or egregious offenses can result in permanent disbarment.

Defending against charges

If you are facing charges of practising law while on inactive status, it is important to seek legal advice from an experienced criminal defence attorney, particularly one who understands the common legal defences in such cases. While you may be able to defend yourself, it is worth noting that no one individual can fully understand the ramifications of every charge and defence without an experienced lawyer.

The first step in your defence is to understand the elements of the crime you have been charged with and the possible defences available to you. The prosecutor must prove your guilt beyond a reasonable doubt, so you should consider any evidence that may create reasonable doubt.

One of the primary ways to defend against a criminal charge is to prove that you did not commit the act. This can be done by providing an alibi, demonstrating that you were somewhere else and thus could not have been the perpetrator.

Additionally, even if you did commit the act, there may be mitigating reasons or circumstances that excuse your actions. In this case, the burden of proof shifts to you to provide evidence and demonstrate why your actions should be excused.

It is important to note that each case is unique, and an experienced criminal defence attorney can provide tailored advice and guide you through the legal process.

Avoiding charges

In California, practicing law while on inactive status is a criminal offense under California Business and Professions Code Section 6126(b) BPC. However, there are steps you can take to avoid charges if you find yourself in this situation. Here are some ways to potentially avoid charges:

Self-Report: If you become aware that you have been practicing law while on inactive status, consider self-reporting to the California Bar. While this may not be an ideal option, it can demonstrate cooperation and a willingness to resolve the issue. In some cases, the California Bar may view this as an administrative issue and impose relatively minor sanctions.

Correct the Issue Promptly: As soon as you become aware of your inactive status, take immediate steps to correct the situation. Pay any outstanding fees, complete any necessary requirements, and initiate the process of reinstating your active status. This proactive approach can reflect your commitment to resolving the matter promptly and responsibly.

Consult a Criminal Defense Attorney: If you have been charged criminally for practicing law while on inactive status, it is crucial to seek legal representation from an experienced criminal defense attorney, preferably one who has successfully handled similar cases. A knowledgeable attorney can review the specific details of your case, advise you on applicable defenses, and guide you through the complex legal process.

Understand the Definition of "Practicing Law": It is worth noting that California does not have a statutory definition of what constitutes "practicing law." This ambiguity can work in your favor if you can demonstrate that your activities did not fall within the scope of practicing law. Consult with your attorney to discuss the specific nature of your work and whether it can be argued that it did not constitute the practice of law.

Assert a Valid Defense: In certain scenarios, you may have a valid defense if charged criminally. For example, if you were unaware of your inactive status and had no reason to know, you may be able to avoid a conviction. Additionally, if you were employed by another attorney or firm and engaged in activities that did not constitute the practice of law, you may have a defense against criminal charges.

Remember, the consequences of practicing law while on inactive status can be severe, including felony charges and potential imprisonment. It is always advisable to seek legal advice from a qualified attorney to understand your specific rights and options.

Self-reporting

In California, individuals who are not current, active members of the State Bar are prohibited from practising law. Practising law while on inactive status is a criminal offence that can result in felony charges, with penalties including up to three years in prison.

However, there is no statutory definition of "practising law" in California, and there may be cases where an inactive attorney engages in activities that do not constitute the practice of law. In such cases, the defendant would have a valid defence if charged.

If you have been practising law while on inactive status, you may consider self-reporting. Self-reporting allows you to control the narrative and could result in a more lenient outcome, as it demonstrates taking responsibility and being proactive in resolving the issue. However, it is important to carefully consider your options and seek legal advice before taking any action.

It is worth noting that the consequences of practising law while on inactive status can be severe, and the California Bar takes such matters seriously. They may open an investigation, which could lead to sanctions or even disbarment. Additionally, individuals who knowingly engage in the unauthorized practice of law may be prosecuted and face harsh penalties.

Impact on the attorney-client relationship

The attorney-client relationship is a delicate one, built on trust and confidentiality. When an attorney becomes inactive, the impact on this relationship can be significant. Firstly, it is essential to understand that the definition of "practicing law" is not clearly defined in California, where most sources refer to this topic. This ambiguity may lead to confusion among attorneys and their clients about what constitutes acceptable activity for an inactive lawyer.

If an inactive attorney engages in activities that could be construed as practicing law, they may face severe penalties, including felony charges, jail time, or probation. These penalties can disrupt the attorney-client relationship, as the attorney may no longer be able to provide legal services or represent their clients in court. In such cases, clients may feel abandoned or betrayed, especially if they are left without legal representation during ongoing legal proceedings.

Additionally, the impact on the client's legal case could be detrimental. If an inactive attorney continues to practice and represent clients, any legal work they perform may be called into question. This could lead to delays in the client's case, the need to redo legal work, or even negative legal consequences for the client due to the attorney's unauthorized practice.

Furthermore, the financial implications for clients can be significant. If an inactive attorney continues to accept payment for legal services, clients may be entitled to a refund of fees paid during the attorney's inactive period. This could create a financial burden for clients, especially if they need to hire a new attorney to rectify any issues caused by the unauthorized practice.

To maintain trust and integrity in the legal profession, it is crucial for inactive attorneys to be transparent about their status and refrain from engaging in activities that could be considered practicing law. While there may be cases where an inactive attorney is employed by a law firm or another attorney, they must ensure their activities do not cross the line into unauthorized practice. By being proactive and adhering to the rules, inactive attorneys can minimize the negative impact on their clients and maintain the integrity of the attorney-client relationship.

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