John C. Breslo
The Breslo Law Firm
9375 E. Shea Boulevard, Ste. 100
Scottsdale, Arizona 85260
014972
[email protected]

I am a personal injury trial attorney and I am opposed to the Petition, particularly the amendment eliminating ER 5.4, in order to permit non lawyers to own or manage law firms, or make decisions concerning legal disputes. I have read the proposals and I have read Judge Swann's opposition. I want to particularly comment on Judge Swann's statement that the proposal will result in a "race to the bottom" for legal services in Arizona and explore what this means in actual practice. Without legal training, non lawyers, almost by definition, cannot compete on quality but can only compete in the legal marketplace on price. Thus, decisions that used to involve legal judgment -- which experts to hire, how many depositions to take, what type of jury research to conduct, etc., will now simply be dictated by the low cost provider. Legal judgment will be replaced by a corporate non attorney supervisor issuing orders to "cut costs," "make the numbers" and "do more with less."

In the current legal marketplace, for the most part, the most successful attorneys are the most successful attorneys - i.e., those who do the best for their clients and gain reputations based upon their results. As we race to the bottom, these successful attorneys will be replaced by non attorneys who use capital to corner large market share -- not legal prowess. The Walmart example is apt. While at first it was great to have a low cost provider of low quality merchandise in your community, it did not take long before main street was empty and Walmart was the only provider of goods in town. Once the market becomes dominated by the low cost producer and everyone else is out of business, competition is gone and the objective of the Petition is never realized. For these reasons I oppose the Petition.

John C. Breslo

Michael Rich
2198 E Camelback Rd Ste 375, Phoenix, AZ 85016
Phone: (602) 802-8900

I strongly oppose the proposed rule. There are many reasons why I oppose such a rule and would urge you to accept the points made by Judge Peter Swann and Geoff Trachtenberg. Lawyers are professionals guided (and bound) by ethical rules. A non-lawyer owner of a law firm -- be it an individual or a huge corporation -- would have profits in mind before the client. I can only imagine a non-lawyer "boss" or "owner" telling his lawyer employee to do something in the interest of profits as opposed to the interest of the client. The conflicts of interest and pressure to make decisions focused on numbers would ruin a profession which already fights unfair stigmas. As the old bromide goes, a few bad apples can spoil the bunch, but if this petition is not rejected, there is little doubt the rotten apples will far exceed the good ones.

Petition No. 20-0034 - Rule Comment

JOHN A. MICHEAELS (005917)

BEALE MICHEAELS SLACK
& SHUGHART, p.c.
ATTORNEYS AT LAW
(602) 650-2465
jam:_ti bmsslaw.com

I have read Petition No. 20-0034. While I agree with attempts to legitimately increase access to justice, I am strongly opposed to the Petition, particularly the amendment eliminating Ethical Rule (ER) 5.4, in order to permit non-lawyers to own, manage and make decisions for law firms and their clients.

As I understand it, the entire purpose of ER 5.4 is to ensure the independence and ethical conduct of lawyers. ER 5 .4 promotes quality and ethical lawyering, including the requirement that those who practice law must be minimally educated and licensed before being allowed to dispense legal advice to the public.

Further, as lawyers, we are officers of the Court who take an oath to support the Constitution and the rule of law and are expected to abide by that oath. Our ultimate loyalty is to the Constitution and the rule of law, and certainly not to a corporate employer and non-lawyer employer and his/her/its economic interests. The proposal to allow non-lawyers (who are not bound by this oath) to invest in and control the practice of law will only take the practice of law and our justice system further away from the realization of that oath and the principles set forth in that oath.

In my humble opinion, access to the justice system will be far better and more directly served if we devoted more money and resources into actually supporting our judicial system, as opposed to allowing non-lawyers (who most certainly will be able to afford legal counsel) to control and profit from the practice of law and our justice system.

Accordingly, it is my hope that the Court rejects the Petition insofar as it eliminates ER 5.4.

I strongly oppose the Petition, especially as it attempts to eliminate ER 5.4 and allow non-lawyers to unduly influence the practice of law for which those of us who practice have devoted and continue to devote so much of our lives. I likewise agree with the comments already expressed in opposition to the Petition and would like to reiterate some things that come foremost to mind.

My firm is a very small firm consisting of two trusted assistants and myself as a solo practitioner. While competition is fierce, there is still room for the solo practitioners/small firms to complete and deliver a more personal experience to clients. As a solo and owner of my firm, I do not have to answer to any purely profit-driven entity or person to justify which cases I accept on a contingency basis year in and year out. That freedom allows me to accept many cases that I know upfront won't result in great financial gain for the firm, but that do provide greater access to many individuals who might otherwise be ignored in a solely for-profit scenario that surely would result from allowing non-lawyers (think big business) to control how legal services are delivered to those in need of them.

I also worry about clear conflicts of interest that will occur if non-lawyers are allowed to own law firms. Every day, I negotiate on behalf of my clients with entities who would be prime candidates to become owners of law firms. My efforts are 100% focused on the best interests of my clients. Those entities' efforts are not focused on what's best for the client, but on what's best for themselves. If they become owners of the law firm, who will be left to truly advocate and protect the most important interest in the equation -- that of the client?

Rodolfo "Rudy" Resendez (016717)
531 E Thomas Rd Ste 104
Phoenix AZ 85012

Kent Hammond
Rudolph & Hammond, LLC
8689 E. San Alberto
Scottsdale, AZ 85258
(480) 951-9700
[email protected]

I am writing to voice my opposition to the Petition, particularly the amendment eliminating ER 5.4, in order to permit non-lawyers to own, manage, and make decisions concerning legal disputes. I also do not want to repeat all of the objections raised by others, but strongly agree with the points made by Judge Swann and former State Bar President Geoffrey Trachtenberg.

While I appreciate the intent to make justice more accessible, these proposed changes go too far too fast. More importantly, there is no empirical evidence the changes will increase access to justice. This rule changes are fraught with peril and should not be adopted.

I oppose the Petition 20-0034 and join in the comments provided by my colleagues, Geoff Trachtenberg, Dev Sethi, Brian Snyder, John Micheaels and Robert Bohm. While we would all like to see the 'access to justice gap' close, I have seen nothing to indicate that these rule changes will accomplish that goal.

Scott I. Palumbo
2800 N. Central Ave., Suite 1400
Phoenix, Arizona 85004
602-265-5777

Ronda Kelso, SBN 023301
2390 East Camelback Road, Suite 403
Phoenix, Arizona 85016
(602) 777-7000

I oppose the petition to restyle and amend as identified. While I can appreciate the attempt to expand access to legal services, I am concerned about the ownership and management of law firms by non-lawyers and the impact such ownership would have on the public needing to access legal services.

John Coste
Central Phoenix Office
2417 North 24th Street
Phoenix, AZ 85008
(602) 433-2323

I oppose the proposed amendment. I do not believe this proposal will increase the public's access to the legal system and it is unlikely to decrease the cost of legal services. It is likely to further erode the general public's perception of the legal system, which will no longer be a profession.

I am adding my name to the long list of attorneys and others opposed to the proposed rule change regarding efforts to expand the role and scope of non-attorneys providing legal services and allow non-attorney ownership of law firms.

I am concerned that such an expansion will be detrimental to the public and will actually have the unintended effect of increasing the cost of legal services. I want to share a recent experience.

My practice is primarily transactional in the areas of business, employment, and real estate. We also take some immigration cases. Just last month, I met with a woman who was defrauded by an individual claiming to be a notary and legal document preparer.

My potential client paid this person approximately $2,000 to prepare and file immigration documents for her to obtain lawful residency. Unfortunately, this individual did not file the documents properly and diverted the substantial filing fees for personal use. Nearly a year later, the potential client was informed that her case was on hold due to failure to pay filing fees. When confronted, the so-called notary provided a check to resubmit to USCIS for filing fees. Unfortunately, the check was NSF and this person has now absconded. A police report was filed, but my potential client now cannot afford to pay the substantial filing fees a second time.

Through the Secretary of State’s website, I was able to determine that this person’s notary privileges were revoked; however, the AZ Supreme Court site for revoked or suspended LDPs is down. This is just one example, but I’m sure there are numerous instances of this behavior. I’m afraid the public will not be well-served by the proposed expansion; in particular, if the oversight level is a minimal as it currently is. Moreover, as an attorney who is often asked to fix the mistakes made by non-attorneys, I can tell you that the cost of doing a task right the first time is significantly less than if the client has to pay multiple times to obtain a legally sound document or result.

I realize that “Access to Justice” is a Court priority, but I’d ask that the Court and committee consider the various unintended consequences of expanding the scope of legal services to non-attorneys.

Further, while this expansion might help in the short-term, it will likely result in an increase in the cost of legal services in the long-term. The cost of attending law school continues to increase. If making a living as a practicing attorney is not an attractive career option, fewer people will be willing to take on the burden of obtaining a legal education. As such, the number of practicing attorneys will decrease over time.

Basic economic principles make clear that a smaller supply of attorneys coupled with a steady demand will lead to an increase in attorney rates. Worse, more attorneys will be drawn to specialized areas that justify higher fees, leading to a dearth of general practitioners similar to what has happened in the medical field.

I set up my practice specifically to serve the needs of small business owners and have used technology to provide cost-effective, flat-fee services to my clients, many of whom are first-time business owners. I recognized that there was a market for more accessibly priced legal services and have filled it successfully. The idea that only non-lawyers or out of state corporations are capable of filling this niche is preposterous.

Michael Boreale
Boreale Law, PLC
177 N. Church Avenue, Suite 1100
Tucson, AZ 85701

Alexandra S. Rubin, esq.
3550 N Central Ave, Phoenix, AZ 85012
Phone: (602) 235-9525

As a solo practitioner who decided to hang my shingle rather than join an established firm, I oppose this change.

Brett Slavicek
5500 North 24th Street
Phoenix, Arizona 85016
(602) 285-4425
[email protected]

I vigorously oppose Petition No. 20-0034. In particular, I am opposed to the Petition’s amendment eliminating Ethical Rule 5.4, allowing non-lawyers to own, manage, and make decisions for law firms and their clients.

While I agree with the goal of attempting to increase access to lawyers, this Petition would allow non-lawyers to take control of the practice of law, which certainly would lower ethical standards in Arizona.

Respectfully, I ask the Court to reject Petition No. 20-0034 which eliminates Ethical Rule 5.4.

Chris Bode
The Law Office of Chris Bode
7373 E. Doubletree Ranch Road #120
Scottsdale, AZ 85258
Bar Number 007346

I oppose the rule change principally for the reasons stated by Judge Swann in his opposition to the Task Force proposal. I have practiced the profession of law in Arizona for almost forty years. I am close enough to retirement that, if adopted, this rule change will have very little impact on my personal practice. Still, in the last forty years, I have seen the "profession" of law morph more and more into the "business" of law. Adoption of this proposed rule change will only accelerate and finalize this result. Instead of having lawyers with ethical obligations requiring competence and adherence to ethical standards, the proposed rule would allow for-profit entrepreneurs with no legal backgrounds to establish and run law firms. This will put the public at risk for incompetent (but profitable!) provision of legal services and will further degrade the legal profession.

I have been a member of the Bar for over 43 years. I respectfully oppose the petition.

I would note that the other state court jurisdiction to which I am admitted is New York. New York requires that not only must practitioners appearing in court be admitted, but that they must maintain an actual office to practice within the state of New York and, that if they reside outside the state, that they must reside in an adjoining state. While this requirement might serve to limit the numbers of persons who might represent clients, it helps ensure the quality and effectiveness of that representation.

About 20 years ago, a then-member of the Superior Court bench whom I will not name addressed a CLE audience and told us that he felt that family law practice should be rendered obsolete and that Family Court should be accessible to the public in a manner akin to the Motor Vehicle Bureau. This proposal is another step down that road.

Leaving aside the troubling issue of non-attorneys owning firms and skewing the marketplace with for-profit operation schemes, telling Family Court litigants that they can be served in Family Court by non-attorneys not only devalues the attorneys but also devalues the court itself. The attitude will develop that Family Court is not a "real" court because one can be advised and represented by persons who are not real lawyers.

What standards will these non-attorneys be subject to in litigation? Will the litigant represented by a traditionally-admitted attorney be held to a higher standard by the tribunal to the detriment of his or her client? Will litigants be able to seek 25-324 fee awards for these non-attorneys? Will they be permitted to submit China Doll affidavits seeking compensation for their services? Will a litigant respect an order from what they perceive as a tribunal that is somehow less than a real court? What about participation by one of these non-attorney individuals in a hearing involving another state's court like a UCCJEA conference.

The court has developed a comprehensive Self Service Center, providing not only a myriad of forms, but also instructions. The FLAP program assists those who may have difficulty with those forms despite the detailed instructions. Judges are respectful and professional when dealing with self-represented parties. However, if despite the Self Service Center and FLAP there are parties who are unrepresented and this is a problem, you might consider imposing a mandatory minimum of pro bono hours. We in family law practice would better serve the profession in this role than serving as involuntary arbitrators in civil cases where family law attorneys don't usually practice. But don't devalue the worth of the courts or the practitioners by conveying the message that lawyers who worked hard to get a legal education, procure juris doctorate degrees, are subject to significant continuing legal education requirements and professional ethical standards are unnecessary. And don't devalue these litigants by conveying the message that they and their problems are unworthy of deserving real courts and real lawyers.

Victor Garnice
Scottsdale, Arizona
480-556-5800
[email protected]

Improving access to affordable and essential legal services is a noble cause, which I hope all members of the Bar support. However, I submit that eliminating ER 5.4 and creating LLLPs are not effective measures to further that cause.

Allowing non-lawyers, particularly corporations and venture capital groups, to infiltrate the profession will undermine the integrity of the profession and its members. As lawyers, we each have taken a solemn oath to serve the public, justice and the profession. Among other things, that oath serves to restrain our conduct and causes us to try to always exercise good judgment. A corporation will not take the oath. The sole reason for such a corporation’s existence is to make money. Despite the proposed rule changes, a corporation will not consider that oath when exercising control and making decisions that may negatively impact the lawyers it engages. What’s more, allowing corporations and other non-lawyers to have an interest in the legal profession will place significant burden on bar counsel and the Supreme Court to try to effectively manage and discipline their conduct. The public and the profession are better served to invest such resources not in more staff for bar counsel but rather in legal clinics or supporting low cost legal services.

Allowing corporations and non-lawyer investors to infiltrate the profession undermines the efficient delivery of justice through the courts. This is supported by the effect that litigation funding companies have had on civil litigation. By flooding the market with cash to pay for ever more expensive experts and technology, these businesses have driven up the cost of legal services and litigation. As a result, it is ever more challenging to settle cases because of their “investment” in lawsuits. One can only imagine if these companies that already exist and are doing business today are actually allowed to invest in the practice of law itself. Presently, ADR and negotiation account for more than 96% of the means to lawsuit resolution. If the proposed rule changes are enacted, these investors will refuse settlement and force cases to trial, which in turn drives up costs of the court system and ultimately increases costs to all members of society.

Finally, permitting non-lawyers and corporations to invest in the practice of law will likely drive up the cost of legal services while diminishing the quality of those services. This is plainly evident looking to the state of healthcare/medicine and higher education in Arizona and the United States. Historically, delivery of healthcare and higher education served primarily to further society and the public good. Yet, they have become commodities to be traded and subject to investment solely for profit. Commoditizing healthcare and higher education have not benefited society. As corporate and private investment in healthcare and higher education has evolved, one is challenged to disagree with the proposition that they are both much more expensive. Commoditizing the legal profession and access to the justice system will lead to the same result.

For the foregoing reasons, I vigorously oppose the proposed rule changes.
John Briggs
SBA #026853
480-367-5405
7233 E BUTHERUS DR
Scottsdale, Arizona, 85260-2410

Shiloh Hoggard
Law Office of Shiloh K. Hoggard, P.L.L.C.
850 Cove Parkway, Suite C
Cottonwood, AZ 86326
(928) 649-3400
[email protected]
Bar No. 023271


I want to add my name to the list of attorneys who are opposed to Petition R-20-0034. For the reasons specified by Judge Swann and so many others on this forum, I have legitimate concerns with this proposal.

Wayne Carrol
AZ Bar Number 024120
(480) 733-6800
[email protected]

I write in favor of the changes proposed. Most attorneys did not go to law school to run a business, but to learn to practice law. The training in law school has no training for properly running a business, and the ethics rules are not a significant guide on how to properly run a business.

The rule changes will allow those who have training and expertise for running a business to work hand in hand with attorneys to make sure that law firms are efficiently AND ethically operated. Many ethics complaints and challenges with unethical behavior relate to poor business practices of attorneys. With the ability for non-attorneys to participate in the profits of a law firm, a law firm can better attract and retain talent that will protect the profession and the clients.

Businesses do not become successful by hurting clients or customers, and allowing business people to become more involved in law firm businesses will allow those who are good at setting up quality businesses and processes to help the legal profession become better in Arizona.

It is my hope that Arizona can show the benefits of this model and that other states and jurisdictions will follow. The current rules will only be beneficial to those practices that are Arizona only practices. Attorney that are licensed in multiple states or jurisdictions cannot make this change unless other states also allow this change.

Thank you for considering this change and how to improve the practice of law in Arizona. Please make the changes suggested.

Wayne Carroll

Stewart Gross
5353 N 16th St, Phoenix, AZ 85016
Phone: (602) 795-4904

I strongly oppose the above Petition to permit non-lawyer ownership in law firms. Clearly access to justice is a problem in this country. But allowing non-lawyers to influence how a client's legal issues should be handled only compounds the problem, not fix it. I have already experienced how non-lawyers can create havoc because of their bad advice to others. Part of my practice is in real estate. During the housing crisis of the mid to late 2000s, many real estate agents took advantage of homeowners who wanted to "short sell" their homes to avoid a foreclosure. In "counseling" their clients, real estate agents wrongly advised some of their clients to pay the banks to obtain a short sale or enter into deficiency payment agreements when these homeowners would likely have had better options. These actions only favored the real estate agents who wanted to make quick commissions. Subsequently, some of these wrongly advised homeowners ended up in litigation having to spend tens of thousands of dollars in legal fees to undue some of the bad advice from these agents. While most real estate agents in this state are ethical, they rarely understand the some of the nuances and consequences of real estate law and are usually motivated by their own financial interests. If we enter a world where non-lawyers are influencing lawyers to advise clients against their best interests in general, just to make more profit, we are doing a disservice to the community. And most likely, these persons are likely to have to seek out traditional law firms to clean up the messes from these non-lawyer owned firms.

Zachary Mushkatel
Mushkatel, Robbins & Becker, PLLC
15249 N. 99th Avenue
Sun City, AZ 85351
623-889-0691

Thank you for the opportunity to respond to the proposed changes and rule adoptions. I am in agreement with the prior comments provided by my colleagues,
Geoff Trachtenberg, Dev Sethi, Brian Snyder, John Micheaels and Robert Bohm-- among others in opposition to the proposed changes to Rule 5.4. Access to justice for all socio economic classes is a must, but the proposed changes permitting non-lawyers obtaining an ownership interest in law firms will have only negative effects upon such access.

I am writing to object to the adoption of this proposal. If access to justice is the goal, allowing unlicensed individuals to serve that population is a disservice to the very people who need assistance. We already have a corporation commission with self services documents, the court has self service documents, many services on the internet allow people to do all kinds of legal services without an attorney. Why do we need to encourage those who are not educated in or trained in the law to provide legal services? Would you want someone who was not a licensed contractor to do a "routine" job such as change our your AC unit? It is routine and it is "high volume." Is that the standard by which we decide the level of knowledge and training for which no license is required? What about getting a filling repaired in your tooth? Does it make sense to say you don't have to be licensed dentist to do that work because it is routine and high volume and we can find someone less expensive to do the work?
Lawyers provide legal services. Lawyers carry malpractice insurance so that the client can be made whole if the advice falls below the standard of care. Summit Law School lost its accreditation because it failed to provide sufficient education to its students so they could pass the bar and become licensed attorneys. Now someone thinks it is a good idea to add another category of unlicensed people to the category of document preparers to provide legal services? Who decides which services do not require legal advice. Is a "simple will" something an unlicensed person should prepare? As a probate attorney, it is not only offensive to say there is something that is a "simple will." Lawyers provide counseling. Lawyers are not paid to produce documents. They are paid to use their education, knowledge and research to provide counseling to ensure the client understand the nature of the work and is able to make an informed decision about the next steps. Why would anyone go to law school or take the bar exam or attempt to be licensed if they can do the same without a license. The purpose of the process is to protect the public. Removing the standards to becoming a licensed attorney will only harm the community.
Additionally, allowing non attorneys to own law practices is a terrible idea. As was stated in another comment, do you want to see the chiropractor own the personal injury attorney business. Should we have real estate brokers own probate law firms? Whose interests are being served? How does any of that possibly benefit the customer. They won't know if they are going to buy a house or buying the legal services of the real estate attorney. Does that attorney represent the broker or the buyer?
This proposal does nothing to further the needs of the community. It will only further harm those most vulnerable.
Emily B. Kile
Kile & Kupiszewski Law Firm, LLC
8727 E. Via de Commercio
Scottsdale, Arizona 85258
480-348-1590

I do not support this rule change. As a plaintiff personal injury attorney I regularly am called by folks who tried to avoid an attorney and handle the case themselves. They have missed mandatory Notice of Claim requirements, Statute of Limitations deadlines, UIM notice requirements, filed lawsuits in the wrong court and a host of other errors, some fatal. Particularly I handle bicycle and aviation cases and bicycle law is something more obscure than regular vehicle law. Many of these folks have sought guidance from others and have been given bad information. Even attorneys have a challenging time obtaining the proper medical records/bills. When it gets to lien laws, there is a fine line between not paying a legitimate claim and squandering client money for claims that can and should be voided or negotiasted. Some reductions allow for legal fees. So if there is no attorney, there are no legal fees to reduce the lien. I and other attorneys are often reluctant to take a case where these errors are made. By allowing non-attorney UPL, it may result in more prejudice to otherwise valid claims than the current system.

As for other kinds of law, people are always allowed to self represent in criminal cases, or often qualify for an appointed attorney, or the Pima County Bar QUILT program of reduced fees, or Legal Aid. We have a number of very fine certified document preparers that are regulated and allowed to assist in form driven legal actions such as domestic relations, incorporating a business, bankruptcy, etc.

The law can change rapidly and since appeal court cases are generally retroactive, there is no grace period or notice period. Non-attorney representatives can miss this and often do not have up to date subscriptions with a case finding service or know how to Shepherd the cases.

Sincerely,

Eric Post
Law Office of Eric Post, PLLC
651 N. Swan Road
Tucson, AZ 85711
(520) 207-9601