Tonya K. MacBeth
Burch & Cracchiolo, PC
1850 North Central, 17th Floor
Phoenix, AZ 85004
Please consider this opposition to the proposed rule change. It is unfortunate when noble goals are thwarted by the inevitable misdeeds by non-lawyers who are handed a golden opportunity for profiteering to the disadvantage of persons who are at a crisis-point in their lives. Few people are fortunate to secure the services of an attorney when their lives are not in disarray. This rule change opens up an entire buffet of overwhelmed and disadvantaged targets.
Increasing access to legal services is a lofty goal. However, it can be done by other means. If the bar believes that everyone should have access to affordable legal services, require the members to provide those services. Don’t increase access by devaluing expertise of those who have been admitted to the bar and make them compete with big-pocketed-profiteers focused on market saturation, advertising, and decreased legal supervision.
As a volunteer Judge Pro Tem, I believe in the obligation to serve the profession that has given so much to me. The bar could require its members to volunteer time or fees within their area of practice. The Rules committee could waive conflict rules for attorneys who are willing to give free court sponsored training sessions on family law rules and procedures for those who are self-represented. The Rules committee could include liability protections (like those provided for court-appointed mental health professionals) for those “appointed” to provide court-house training sessions for pro bono litigants. The volunteer Pro Tem list could be the first source of trainers and those ready to train-the-trainer. These services could be piloted in Family Court, then Probate, followed by civil court.
Supervision and maintenance of professionalism is an important part of many attorneys’ law practices. I devote significant time to the supervision of my staff (paralegal and assistant) and the firm as a whole dedicates significant time to the supervision of the accounting, technology and marketing activities. All of these activities are carried out with the ethical responsibilities, rules, and an eye on the financial health of the organization. Through supervision, I have the ability to set the total cost for a dissolution action by determining the level of expertise required, the ability to use paralegal services under my supervision, and the time necessary to provide appropriate representation. However, with paraprofessionals working independently, the end result is lower expertise, not lower cost.
Lower cost services are not the panacea for the access problem. A survey conducted with LLLT’s and LLLT candidates in Washington, found that “[a]assuming that potential clients would be willing to spend even half a paycheck on their LLLT services . . . none of Washington’s population living at or below 125% of the federal poverty line could afford an LLLT [and] only about 15 percent of those living at or below 200 % of the federal poverty line could afford one.” Becca Donaldson, Who Accesses Justice? The Rise of Limited License Legal Technicians, 4(5) HARVARD LAW SCHOOL CENTER ON THE LEGAL PROFESSION: THE PRACTICE, July 2018, https://thepractice.law.harvard.edu...s-justice/
“A nonlawyer might see the potential for financial gain by taking a certain course of action and, therefore, attempt to influence an attorney’s professional judgment. The nonlawyer wants to take the easy settlement, grab a legal fee and run.” Phil Pattee, Nonlawyers Are Useful, but You're the Attorney, Nev. Law., November 2008, at 37. By adding into this mix the ownership interests of persons who are not schooled in the responsibilities of practice, who are focused exclusively on profitability, you are injecting competing interests. These competing interests will not naturally coalesce around the non-income generating aspect of supervision or the obligation to maintain the integrity of the profession.
The rule change is asking us to embrace our non-lawyer partners’ inherent profit motives and believe that the underserved will benefit. It is an illogical conclusion. Increasing the number of people who make money from a single client does not result in a lower cost for the client. The Second Circuit recognized this very principle in upholding New York State’s prohibition against “the involvement of unrelated third parties in the attorney-client relationship.” Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, Appellate Div. of the Supreme Court of N.Y., 852 F.3d 178, 191 (2d Cir. 2017). In Jacoby & Meyers, the plaintiffs challenged New York’s ban on non-lawyer equity investment, arguing that allowing non-lawyer equity investment would increase access to justice by lowering the cost of legal services. Id. at 182.The court rejected that argument and found that prohibiting non-lawyer equity involvement in firms “serve[s] New York State’s well-established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession.” Id. Without such a prohibition, nothing will prevent the creation of incentives for attorneys to violate ethical norms, such as those requiring attorneys to put their clients’ interests foremost. Id. The compliance officer will be subject to the same pressure.
The end result of the proposed rule changes is opening the practice of law to profiteers and extending to them the last vestiges of respectability attached to the legal community. The Bar works hard to protect the profession from our own bad actors. This proposal will only serve to open the door to those who could never be admitted to practice.
Thank you for your dedication to the ideals of justice. We have other ways to meet the need beyond just diluting the services rendered. It is my sincerest hope that this rule proposal has opened the legal community to think outside the box to innovate in ways that demonstrate our dedication to the residents of Arizona and the profession.