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Last Post 22 May 2020 12:32 PM by  Linda Tucker
R-20-0034 Petition to Restlye and Amend Supreme Court Rule 31; Adopt New Rule 33.1; and Amend Rules 32, 41, 42 (Various ERs from 1.0 to 5.7), 46-51, 54-58, 60, and 75-76
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Author Messages
Yolanda Fox
New Member
Posts:92 New Member

20 May 2020 09:31 AM
Gregory A. Rosenthal
Bar Number 012866
Burch & Cracchiolo, P.A.
702 E. Osborn, #200
Phoenix, AZ 85014
Direct: 602.234.8796

Actually, it should ”concern” everyone. I write in opposition to the proposes rule amendment to allow non-lawyer owners of law firms. I find it to be bad, potentially catastrophic, public policy creating an avenue for profit minded investors to prey upon unsuspecting clients, removing the lawyer’s ethical and professional role from the relationship. I urge the committee to reject any proposed rule change that would allow non lawyer owners of law firms
Yolanda Fox
New Member
Posts:92 New Member

20 May 2020 09:34 AM
John M. Curtin
Robbins & Curtin, pllc.
301 E. Bethany Home Road, Ste. B-100
Phoenix, AZ 85012
Bar Number #011435
(602) 285-0100
(602) 265-0267

I oppose the amendment for the reasons stated by Geoff Trachtenberg and others.
Yolanda Fox
New Member
Posts:92 New Member

20 May 2020 09:37 AM
Bimal Raj Merchant, Esq.
Bar No. 026315
Merchant Law Firm PLLC
1001 N. Central Avenue, Suite 660
Phoenix, Arizona 85004
Phone: (602) 254-6010
Fax: (602) 254-6352
Email: brm@merchantlawaz.com
Website: www.merchantlawaz.com

I am hereby submit my opposition to the proposed rule change, and especially the deletion of ER Rule 5.4.
Yolanda Fox
New Member
Posts:92 New Member

20 May 2020 09:43 AM
Joseph D'Aguanno (Bar # 020421)
Trial Lawyer / Managing Attorney
Gage Mathers
2525 E. Arizona Biltmore Circle,
Suite A-114
Phoenix, AZ 85016
(602) 258-0646 (602) 258-8287

I oppose the proposed Rule change, even as recently modified.

For many years I complained about my inability to start a firm with non-lawyer family members. It seemed unfair that families can open businesses together in virtually every industry but law. The prohibitions on fee sharing and paying referral fees, and nuances to do so, seemed antiquated and contrary to modern methods.

I underwent a damascene conversion after I read the proposed Rule changes, and almost choked when I was told part of the motivation for the Rule change was access to justice.

Anyone who claims the latter point with a straight face is a prodigious liar and likely has ulterior motives. Look at the world of personal injury and the numerous obstacles that our system created for injury victims, especially for victims of medical negligence or injuries from public entities/employees, and the collections efforts those victims must endure for companies like local health care providers who get to put a lien on the personal injury recovery despite already being paid by health insurance; add on the costs for experts and discovery because companies like State Farm would rather spend more than $15,000 to defend a rear-end car crash claim than pay $10,000 to settle it.

The hurdles in medical negligence cases have probably led to hundreds, if not thousands, of claims never seeing the light of day (and those providers continuing to injure patients) because medical malpractice litigation can cost an injury victim upwards of $150,000 to see a jury.

You want to expand access to justice for injury victims, then remove these obstacles. You want to help injury victims of medical malpractice whose claims might only be worth $200,000, then lower their cost to access justice.

Did the Task Force consider expanding the Legal Aid program and funding clinics at Arizona's law schools? Did the Task Force define what "access to justice" means and whether it differs by area of law? Did the Task Force consider that different areas of law have different pressure points that limit access to justice and maybe each would require a different approach?

The comments to the proposed Rule change and experiences in other jurisdictions (e.g., California, Utah) show us two things: (1) one "solution" for all areas of law does not make sense, and (2) wholesale change to the Rule without a pilot project is foolish. We should, at a bare minimum, develop plans for each area of law that truly address the purpose of the Rule change.

Instead of rushing to change the Rules, maybe we should pause, ask the right questions, and then use facts, logic, and sound reasoning to answer those questions.
Yolanda Fox
New Member
Posts:92 New Member

20 May 2020 09:50 AM
M. Brennan Ray
Certified Specialist in Real Estate Law
Direct: 602.234.8794
E-mail: bray@bcattorneys.com

I am opposed to the proposed Rule change.
Yolanda Fox
New Member
Posts:92 New Member

20 May 2020 11:47 AM
Sam Cullan
Arizona Bar Number . 012673 - Admitted 1989
Cullan & Cullan
20830 N. Tatum Blvd., Suite 360
Phoenix, AZ 85050
(602) 200-9999

I wanted to write to express my opposition to the proposal to eliminate ER 5.4. Respectfully I believe that non-lawyers should not be allowed to own or operate law firms. The current system works well. I suspect that the quality of legal services will decline greatly with negative consequences for those who most need competent legal counsel.
ACC Executive Director
New Member
Posts:2 New Member

21 May 2020 09:36 AM
Matthew J. Neubert, Executive Director
Arizona Corporation Commission
1200 West Washington St.
Phoenix, AZ 85007
Phone: 602-542-4250/602-542-3931
Email: sharpring@azcc.gov; mjneubert@azcc.gov
Bar No.: 009225

May 21, 2020

Arizona Supreme Court
1501 West Washington, Fourth Floor
Phoenix, Arizona 85007

Re: Petition No. R-20-0034

Chief Justice Brutinel, Vice Chief Justice Timmer, and Justices Bolick, Gould, Lopez, Beene, and Montgomery:

On March 30, 2020, the Arizona Corporation Commission ("Commission") submitted extensive comments suggesting modifications to Petition No. R-20-0034's proposed language to replace the current Arizona Supreme Court Rule 31 (“Rule 31”). The Commission's comments appear not to have been considered in creation of the Amended Petition. Thus, the Commission again submits, for the Court's consideration, the following comments suggesting modifications to the proposed language to replace Rule 31:

Many parties who appear before the Commission use lay representation as permitted under Rule 31(d)(28), which allows a public service corporation, an interim operator appointed by the Commission, or a non-profit organization (collectively “organization”) to be represented by a corporate officer, employee, or member who is not an active member of the state bar under the following circumstances: (a) the organization must have specifically authorized the representation, (b) the representation must not be the representative’s primary duty to the organization, and (c) the representative must not receive separate or additional compensation (beyond reimbursement of costs) for the representation. Rule 31(d)(28) further allows the Commission or presiding officer to require counsel in lieu of lay representation if it determines that the lay representation is interfering with the orderly progress of the proceeding, imposing undue burdens on other parties, or causing harm to the represented organization.

The Commission is also mentioned by name in Rule 31(d)(13), although it has relied upon that provision only to allow for lay representation in Commission securities cases, to which Rule 31(d)(28) generally does not apply. The Commission finds the current language of Rule 31(d)(13) to be unclear in that inclusion of the Commission in the first sentence of Rule 31(d)(13) is unnecessary, because the Commission has no involvement in tax-related proceedings, and the second sentence of Rule 31(d)(13) is a very broad exception that appears to have no relationship to the first sentence. Additionally, the Commission has received inconsistent opinions from Arizona State Bar UPL attorneys over the years when inquiring as to the meaning of Rule 31(d)(13).

The Commission conceptually supports broadening the exception currently afforded by Rule 31(d)(28), as the proposed Rule 31.3(c)(5) would do, but requests that the following revisions be made to the language of the proposed Rule 31.3(c)(1), (c)(5), and (c)(6):
• In Rule 31.3(c)(1), the definition of “legal entity” should be revised to include federal, state, county, municipal, and tribal governmental entities. It is not uncommon for a federal government entity or a tribal entity to desire representation by an individual licensed as an attorney in another jurisdiction. Additionally, small municipal entities may prefer to rely on lay employees for representation rather than outside counsel for budgetary reasons.
• In Rule 31.3(c)(5), a comma should be inserted between “administrative agency” and “commission,” to distinguish between them.
• In Rule 31.3(c)(5)(A), the “full-time” requirement should be deleted. A number of smaller utilities primarily use part-time employees in their operations. Additionally, an individual’s status as “full-time” with a legal entity does not necessarily correlate with an enhanced ability to represent the legal entity effectively in a hearing or other administrative proceeding.
• In Rule 31.3(c)(6), an additional situation under which counsel may be required should be added—when lay representation is causing harm to the legal entity so represented. The Commission believes that this is what the current Rule 31(d)(28) language “or causing harm to the parties represented” was intended to address. The Commission suggests replacing “or” in the last line of proposed Rule 31.3(c)(6) with a comma and inserting the following after “parties”: “, or causing harm to the entity.”

Additionally, the Commission requests that “the Arizona Corporation Commission” be removed from proposed Rule 31.3(d)(5), as the Commission is not involved in tax-related proceedings, and its inclusion there invites confusion.

Finally, for the reasons set forth below, the Commission requests that the following revisions be made in Rule 31.3(c) to allow for the preparation and filing of technical or financial documents by qualified non-attorneys:
1. Add the following language as a new subsection (c)(6) in proposed Rule 31.3:
"(6) Arizona Corporation Commission.
(A) A person may represent a legal entity in a proceeding before the Arizona Corporation Commission (“Commission”) if the representation complies with subsection (c)(5).

(B) A person with expertise in the field of public utility regulatory compliance, public utility accounting or finance, public utility engineering, railroad engineering or safety, or pipeline engineering or safety may, on behalf of a legal entity regulated by the Commission:
(i) Prepare for filing with the Arizona Corporation Commission or submission to a Commission Division a tariff, rate schedule, engineering report, or other technical or financial document within the person’s field of expertise; and
(ii) File in a Commission docket, or submit to a Commission Division, the tariff, rate schedule, engineering report, or other technical or financial document prepared as permitted under subsection (c)(6)(B)(i)."

2. Renumber the existing subsection (c)(6) in proposed Rule 31.3 to (c)(7).

Utilities and other legal entities regulated by the Commission are often required to file with the Commission technical or financial documents, such as tariffs, rate schedules, or engineering reports. Regulated entities also may be required to submit such technical or financial documents to a Commission Division directly. It is common for these technical or financial documents to be prepared by hired consultants rather than attorneys or the personnel of the regulated entities. In the case of utilities, this is true largely because public utility operation and regulation is a complex and niche field, and it can be difficult for utility personnel to develop the level of regulatory expertise that experienced consultants have acquired. For smaller utilities, of which there are hundreds in Arizona, the training necessary to develop such expertise generally is cost prohibitive, as is hiring an attorney. For out-of-state competitive telecommunications utilities, which commonly operate throughout the United States, it is often most efficient to have one consulting company oversee regulatory compliance for all operations. Also, and importantly, the education, training, and experience of most attorneys does not impart the knowledge and expertise necessary to prepare such technical or financial documents.

Nevertheless, because such a technical or financial document is prepared on behalf of a specific entity for filing with an administrative agency and could be a document intended to affect or secure the utility’s legal rights (e.g., a tariff may confer the right to impose certain requirements on customers or to receive recovery through rates for certain capital expenditures), the preparation of the document by a non-attorney consultant appears to constitute the unauthorized practice of law (“UPL”) under the current Rule 31(b)(3) and (5). Likewise, under the current Rule 31(b)(2), the act of filing such a document in a Commission docket or submitting such a document to a Commission division can be viewed as representing the utility in an administrative proceeding and thus UPL.

The Commission believes that it would be beneficial to the regulated entities and the public interest to facilitate regulated entities’ use of experienced non-attorneys, including consultants, for the preparation and filing of technical or financial documents. The Commission further believes that the cost savings to affected utilities (from not being required to hire attorneys) would flow-through to the customers of those affected utilities in rates.


Matthew J. Neubert
Executive Director

CC: Jane Rodda, Hearing Division Director
Robin Mitchell, Legal Division Director
Mark Dinell, Securities Division Director
Yolanda Fox
New Member
Posts:92 New Member

21 May 2020 10:03 AM
Gian Duran
4116 N 19th St,
Phoenix, AZ 85016
Bar No. 028933

I am writing to oppose the above referenced rule change. Opening law firm ownership to non lawyers will result in worse representation for clients by leading to fast food style, quick churn legal services maximizing volume and profit at the cost of adequate representation. While well intentioned, the rule change will backfire.
Burr Udall
New Member
Posts:1 New Member

21 May 2020 10:03 AM
Burr Udall
4801 E Broadway Blvd
Suite 400
Tucson, AZ 85711-3638
Bar No. 739

I am violently opposed to eliminating E.R. 5.4. The practice of law is a profession and we are supposed to be doing good to help the general public. The elimination of 5.4 merely and solely makes the legal profession a profit center for large corporations who have no interest in the public and their only interest is making money.

Burr Udall
Ann Ching
New Member
Posts:1 New Member

21 May 2020 11:55 AM
Nancy Greenlee, Bar No. 010892
Ann Ching, Bar No. 020407
111 E. Taylor St., MC 9520
Phoenix, AZ 85004-4467
(480) 727-6242

We submit the attached comment to this Petition.
Yolanda Fox
New Member
Posts:92 New Member

21 May 2020 03:23 PM
Paul Hofmann, Esq.
7440 N. Oracle Rd., Bldg. 5
Tucson, AZ 85704
(520) 797-1041 ph
(520) 797-1491 fx

I have been a practicing attorney for nearly 30 years and proudly come from a family of lawyers -- my father ended his career as a city magistrate, my brother and sister worked in the public sector, and my son recently passed the California Bar, and is now preparing to take the Arizona Bar. My life has revolved around respect for lawyers and the trust that our clients, and society, place in us. Unfortunately, I'm afraid that trust may soon disappear.

This potential change in the ethical rules, specifically, to eliminate ER 5.4, will lead to damaging and unintended consequences. For instance, it will give non-lawyers the ability to inordinately control decisions that lawyers make in their practices every day, decisions that should only be based on the best interests of the client, not the whims of an investor. It will also undoubtedly hyper-commercialize an industry that has, for the most part, resisted such changes.

I therefore strongly oppose the amendment.
Yolanda Fox
New Member
Posts:92 New Member

21 May 2020 03:59 PM
John Trebon
308 N Agassiz St
Flagstaff, AZ 86001
az. Bar number 005375

I oppose the proposed rule, which in essence allows corporate America to profit off the backs of lawyers, cheapen the quality of legal services, and demean both lawyers and the profession. Lower quality, more money on advertising than legal services, and a cheaper end product. Talk to any young doctor now working for medical groups owned by non-medical marketers. The doctors see more patients in less time, work longer hours, receive less pay, and go home worrying about patient care, and potential malpractice. NOT the model to follow, unless, of course, you are investors willing to make bucks Z your main goal.
Chris Ford
New Member
Posts:1 New Member

22 May 2020 12:40 AM
Chris Ford, SBN 029437
Attorney at law
530 E. McDowell Rd., Ste. 107-455
Phoenix, AZ 85004

During the 1990s, multi-disciplinary practices (MDPs) were all the rage. Boosters touted the prospect of “one-stop shopping” for professional services. This had great appeal to some – especially those who were champing at the bit to profit off the backs of us lawyers. So it went until the Enron scandal hit in 2001 and the once-proud Arthur Anderson accounting/consulting firm went down in flames fueled by fraud, insider trading and cooked books. Could you imagine having been a lawyer tasked to supervise AA’s destruction of evidence and falsification of Enron’s financial records? or having to look the other way while Enron execs engaged in insider trading? If the ABA had permitted MDPs to be formed, such might have been the dismal fate of many a law school grad.

The ABA met in the late 1990s in Los Angeles and considered modification of Model Rule 5.4 to allow non-lawyers to own law firms and/or profit from the practice of law, so as to facilitate the creation of MDPs. An opponent argued that were the proposal to pass, lawyers would be placed in the same position as doctors, whose practices (at least in the U.S.) are controlled by for-profit insurance companies, the result of which is that doctors must endure the ignominy of having high-school educated insurance bureaucrats telling them what they can and cannot to. The opponent pleaded: “Don’t let that happen to us!”

I never forgot that meeting and therefore was shocked to hear that Arizona was considering a rule change that would eschew Model Rule 5.4 and allow businesses to own law practices. Imagine the nightmare scenarios. We go to law school and work like crazy to learn our profession for what? so we can have corporate bureaucrats and bean-counters substituting their judgment for ours? so we can be under the thumb of a hedge fund? Imagine the misleading marketing that corporations would come up with to sell our services. Imagine your corporate boss compelling you to “sell” the client all sorts of unnecessary legal services and having to do so to keep your job. Imagine answering to an insurance company bureaucrat with a high school education, just as doctors do. Imagine spending half your time trying to figure out how to “code” your bill to satisfy the insurance bureaucracy, just as doctors do, and having the insurance company reject your bills or simply fail to pay them about half the time, just as occurs with doctors. Are you aware that there is a whole industry of billers whose job is to navigate the insurance companies’ byzantine “code” system so doctors have even a hope of getting paid 50 cents on the dollar for their work? Would you like to introduce that sort of waste, busywork and economic loss into the legal profession?

The speaker at the 1990s ABA meeting also pointed out that while some attorneys were excited to share in the profits companies involved in the then-occurring tech boom (which turned out to be a tech bubble), he advocated that we lawyers stay above the fray as professionals. An attorney cannot give clear-headed advice to the client when the attorney’s judgement is clouded by visions of dollar signs because s/he stands to share in the profits of the business s/he was hired to advise. No doubt some lawyers do that today, but turn away from Model Rule 5.4, and the range of ethics-challenged entanglements lawyers would find themselves in can be limited only by the imagination.

To make matters worse, the proposed Arizona rule change also would create a class of non-lawyers pretending to practice law. Is it not bad enough that the state of Arizona sees fit to have non-lawyers serve as “judges” in the justice courts (When I first moved to Arizona and heard about that, I was aghast at the injustice of imposing this obviously outdated frontier concept on a increasingly modern, 21st century U.S. state)? Again, imagine the nightmare scenarios; actually, you don’t have to, because they already exist. In Latin America, a “Notario” is a government-appointed position of great importance and responsibility, and to qualify to serve as a Notario in Latin America, one must be a lawyer. In Spanish-speaking immigrant neighborhoods of U.S. cities, unscrupulous people obtain a notary public stamp then hold themselves out as “Notarios,” a profitable, if fraudulent, way to pretend one is a lawyer to Spanish-speaking clients. One can scarcely imagine the array of shady marketing schemes the newly established pretend-lawyers created by the proposed rule change would use to swipe business from real lawyers. Think: “Notario.”

Then there is the problem of quality. I used to practice probate law, and I used to joke sarcastically that I loved when paralegals drafted wills, because the resulting product created lots of work for us lawyers. Why? Because it invariably was poorly drafted, giving us lawyers lots of enticingly vague or incomprehensible language to fight over and run up the tab on the estate or its challenger. The new phony-lawyer industry that would sprout from the proposed rule change no doubt would create new work for us, as the pretend lawyers no doubt would foul up many of the tasks they undertake, but at what cost to the public? and at what cost to the reputation of our profession? And who would suffer the most (hint: low-income and vulnerable people)? Is this proposal really worth the devastation it would visit on our profession, our position in the public’s eye, and members of the public would be taken in by these pretend-lawyers’ marketing schemes?

I can only conclude that the real purpose of this double-barrel proposal is to destroy the practice of law in Arizona and make it extremely difficult for an average member of the public to protect his or her legal rights. I can only assume someone who is very powerful (or perceives him/herself to be so) and does not like being held in check by law practitioners hatched this dastardly plan. Please do not be swayed by this abomination. Join me in vehemently opposing it, or consider this: I am licensed in another state, so I at least have an out if this thing passes and our profession in Arizona is rent asunder. Do you?

Dennis O'Berry
New Member
Posts:1 New Member

22 May 2020 08:12 AM
Dennis O'Berry, Esq.
Suzuki Law Offices
2929 E. Camelback Rd., Ste. 224
Phoenix, AZ 85016
(602) 682-5270 ph
(480-907-1571) fx

I oppose this proposed rule change, particularly the elimination of ER 5.4. It seems the purported access to justice argument is just a ruse put forth by, or on behalf of, organizations seeking a new revenue stream rather than helping those with heretofore unmet legal needs.

Jason Kelly
New Member
Posts:1 New Member

22 May 2020 10:09 AM
Jason Kelly, Esq.
Bar No. 020525
4808 N. 22nd Street, Suite 200
Phoenix, AZ 85016

I write in response to the April 27, 2020, Task Force report. This report is filled with assertions that are either: (1) unprovable either way, (2) lacking in support, or (3) ignoring substantive differences when trying to make arguments based on analogies.

The Committee writes, “Moreover, the financial impact on some law firms may be severe.” No one can argue with this statement – just as no one can argue with the statement that, “The financial impact of the pandemic may be economically beneficial to some firms.” (I also cannot prove that aliens did not build the pyramids in Egypt). Actually, I’d be willing to bet that, this year, some law firms will have an economically prosperous year and some will have an economically bad year. Further, law firms and court found innovations without the infusion of private equity. In point of fact, Zoom Pro costs only $14.99 per month. If a law firm cannot afford another $15 a month without the infusion of private equity, that law firm has other, more significant, problems.

The next page suggests that the consternation of lawyers worried about private equity and non-licensed attorney is driven by an “existential” anxiety of de-valuing the practice of law. The concern is not some sort of ephemeral, esoteric concern hurting the pride of lawyers. Our country is founded on the rule of law, and, yes, the foundations of our country need to be protected by highly-trained and skilled individuals. Within our bar, there are attorneys who were able to earn their undergraduate degree, earn a law degree, perhaps earn other degrees, pass the bar who are still unable to fulfill the obligations required of them – one need only look at the back of our monthly Arizona Attorney magazine. Lowering the required standards (even if the standards for practice are “stiff”) cannot possibly increase the quality of the delivery of legal services.

I still fail to see how allowing private equity and non-licensed practitioners would somehow increase “access to justice.” Criminal defendants have a right to counsel, personal injury plaintiffs do not need a nickel to hire a lawyer, and real estate agents already have a limited license to practice law. A narrow exception to domestic violence victims seems appropriate, but that is based on many years of research in our law schools delivering such services.

Page 10 of the April 27, 2020, report gives us an insight into what having non-licensed advocates may look like. It reads, “That gulf [between the need for legal information and services and access to those services] has clearly widened during the pandemic.” There is no citation to anything here! It may be true, it may not be true. How do we know? Are the ethical rules really being changed on the basis of conclusory statements? My 1L legal writing professor used to say, “The more times you need to use the word ‘clearly,’ the less likely that your statement is clear.” Imagine making a statement like that in a motion, without any support in the brief. The judge would ask the writer for support for that statement. I ask the Task Force where there is support for that statement. Assuming that we find support for that statement, the follow up question is why non-licensed persons funded with private equity are needed to beat back the effects of the pandemic. And, after there is a vaccine and/or herd immunity, will non-licenses persons funded by private equity still be needed?

I still do not understand why both of these broad initiatives are being proposed simultaneously at such a break-neck speed. As discussed above (and in my February 28, 2020 comment), narrow exceptions to the license to practice law, proven over the course of time, have proven to be beneficial in different areas. Narrowly-tailored, carefully-studies exceptions are inapposite to wiping away the general, centuries-old rule.

The latest report also seems to suggest that having fiduciary obligations to private equity, non-lawyers is not different than a lawyer’s obligation to his other lawyer partners. This overlooks that the other lawyer partners in the law firm are all constrained by the ethical regulations.

Captive insurance defense counsel have the same ethical motivation as the carrier’s financial motivation – to limit the client’s/insured’s exposure. And, even in those situations, conflicts can become problematic. See, e.g., Paradigm v. Langerman, 200 Ariz. 146 (2000); and see, Himes v. Safeway, 205 Ariz. 31, 40, ¶¶ 25-26 (App.2003). Is the Task Force truly envisioning a world where a lawyer will wall-off from his private equity partners in favor of his client? Working as an employee is substantively, qualitatively, and vastly different than accepting private equity money from a manager with obligations to his investors.

Glaringly absent is any protection against an investment group holding interests in adverse law firms. Glaringly absent is any protection against an investment group owning both part of a liability insurer (or an errors and omission carrier) and a plaintiff’s personal injury (or professional malpractice – be it legal, medical, real estate, or otherwise) law firm. Glaringly absent is any protection against an investment group holding both an interest in a title insurance company and a bank or credit union trying to foreclose upon property insured by that title insurance company. Glaringly absent is any protection against an investment group holding both an interest in a bank doing foreclosures and a firm opposing those foreclosures. Glaringly absent is any protection against an investment group owning an interest in both credit collections companies and a firm doing consumer bankruptcies. Investment groups are so well diversified that such conflicts are inevitable; at some point in time, fund managers may actually see the benefit is diversifying in such a manner.

I would submit that we need only to look at the evolution of corporate health care to decide whether persons with legal disputes should be treated like patients whose doctors are unable to spend time with them due to the financial dictates of non-doctors running their offices, clinics and hospitals.

Perhaps the most troubling aspect of this entire process is that the April 27, 2020 report does not appear to take into account any of the concerns of the various and numerous persons who have submitted comments. Rather, this is a defense of the original report issued last fall. If the Task Force is going to push this through anyway, why even have comments. This process is a sad commentary on political discourse in our country. 2,500 years ago in Athens, debate was the highest form as discourse, as it was the crucible of truth through which two debating sides would take each other’s viewpoint into account and, together, journey toward truth. Sadly, discourse in America today is geared toward confirmation amassing evidence simply to serve one side’s own confirmation bias. Not a single concern of any practicing lawyer was addressed in this April 27, 2020 report, except to attempt to rebut a few. If this truly is the state of where our legal system and political discourse are at, perhaps there is no reason for "officers of the court" to continue defending the integrity of our rule of law. This is a true existential crisis worth considering.

I have taken a strongly-worded stance against the proposals. At base – and even more so than my general opposition to the changes – I have great consternation with the lack of analysis that has gone into to such broad proposals. All that I am asking for is carefully considered and studied proposals, supported by data, to be subject to rigorous analysis and debate. We do not know the full impact of these sweeping changes, and if broad changes are made without appropriate forethought, we will not be able to put the lid back on the box.
Yolanda Fox
New Member
Posts:92 New Member

22 May 2020 12:00 PM

I write to express my strong support for the recommendations of the Task Force on the Delivery of Legal Services.

My views are based on my experience as a lawyer. I served for the past nine years as President of the Legal Services Corporation, the United States' largest funder of civil legal aid programs for low-income people. I practiced law with Arnold & Porter for 30 years, including ten years as the firm's Managing Partner. I am a past President of the 110,000-member District of Columbia Bar and a former General Counsel for the District of Columbia Public Schools. I currently chair the American Bar Association's Task Force on Legal Needs Arising Out of the 2020 Pandemic. I offer my views solely in my personal capacity and not as a representative of any entity.

The civil justice system in our country is failing tens of millions of people every year. The Legal Services Corporation estimates that 86 percent of the civil legal problems oflow-income people receive no or inadequate legal help. The National Center for State Courts estimates that in approximately 75 percent of civil cases in state courts at least one party does not have a lawyer. The Self-Represented Litigation Network estimates that 30 million people each year participate in legal proceedings without a lawyer. These matters involve the most basic of human needs - shelter, family stability, personal safety, health, and economic subsistence.

I believe significant regulatory reform is an essential component of addressing the justice gap. Reform needs to include two elements. First, we need to loosen onerous restrictions on the unauthorized practice of law that consign too many people who cannot afford a lawyer to no legal service of any kind - a classic case ofletting the perfect be the enemy of the good. The choice for the person who cannot afford a lawyer today is not an unlicensed paralegal. It is too often nothing at all. And we do this in the interest of "consumer protection." We need to permit competent, well-trained, regulated professionals who do not have a J.D. or membership in the bar to provide assistance in cases where people would otherwise have to fend for themselves. I am glad that you are moving forward with the Task Force's recommendation to develop a program to license such professionals.

Second, it is important to liberalize the rules governing nonlawyer ownership of and financial interests in entities providing legal services. Investment in legal innovation that would better serve the public is currently obstructed not only by restrictions on the unauthorized practice of law, but also by the prohibitions on fee-sharing and nonlawyer investment in legal enterprises. As a result, the practice of law today looks very much like it did in the 20 th century, if not the 19th. We owe the public a system of justice that reflects the kind of access, effectiveness, and efficiency that innovation has brought to so many other industries and professions in 21st century America. Eliminating Rule 5.4, as the Task Force recommends, is an important step toward achieving that goal.

The current Covid-19 pandemic makes this a particularly appropriate time to move ahead with regulatory reform. The crisis in unmet legal needs is about to become far greater and even more urgent, with more than 30 million people who have recently lost their jobs soon to face a flood of eviction, foreclosure, and debt collection cases. This is a time for action.

I was glad to learn that Utah is moving ahead with its regulatory sandbox and is accepting expedited review of applications that provide low-cost or no-cost services to individuals and businesses. I hope Arizona will follow Utah's example.
Yolanda Fox
New Member
Posts:92 New Member

22 May 2020 12:08 PM
Richard B. (Moe) Biggs
AZ Bar # 011396
Busby, Bell & Biggs, P.C.
1241 E. Prince Rd
Tucson, AZ 85719
Phone: 520-293-0344
Fax: 520-293-8347
Email: moe@busbylaw.com

I want to state my objection to the Petition and the potential elimination of ER 5.4.

I have read many of the comments already provided and agree adamantly with those in dissent of the Petition. While I appreciate the goal of making the courts and legal system more accessible to the general public, my concern is that mere access can lead to unintended injustices for those whom we thought we were protecting. It seems that allowing the legal system to become a commodity that can be sold by non-lawyer corporations or persons whose primary focus is profit and are not accountable to some ethical or professional standard is an option fraught with unintended and unfortunate consequences.
Yolanda Fox
New Member
Posts:92 New Member

22 May 2020 12:13 PM
Michael J. Bell
State Bar of AZ # 009020
Busby, Bell & Biggs, P.C.
1241 E. Prince Rd
Tucson, AZ 85719
Phone: 520-293-0344
Fax: 520-293-8347
Email: Mike@busbylaw.com

I am writing in opposition to the Az Supreme Court petition for rule change, R-20-0034. The goal of increasing access to justice, giving legal services to more people at a cheaper price, is something all in the legal profession should be striving for. The proposed rule change will do little to accomplish that goal. The proposed rule change is not about assuring quality legal representation to those who otherwise could not afford it. It is more about the investment potential of the legal profession. Our healthcare system has tried this with the recent increase of urgent cares owned by non-medical people and I do not see anyone indicating that model has lowered the cost of medical care or improved the quality of medical care. The proposed rule change will likely only result in investors owning law firms that will be investment vehicles whose only purpose is to satisfy its shareholders. I do not see how the rule change has any focus on the wellbeing of individuals needing legal services.

I am asking the Arizona Supreme Court to reject petition R-20-0034.

Yolanda Fox
New Member
Posts:92 New Member

22 May 2020 12:20 PM
7440 N. Oracle Rd., Bldg 5
Tucson, Arizona. 85704
e-mail: thomsonesq@msn.com

This is to express my strong opposition to the proposal to amend the Ethical Rules and remove ER 5.4. There are two provisions of this rule that particularly protect the interests of the public at large and the elimination of which will gut that protection.

Specifically, ER 5.4 (d)(3) disallows the practice of law in a professional corporation if a nonlawyer could direct or control the judgment of the lawyer. If this is eliminated, nonlawyers will assuredly control the judgment of lawyers in their practice. The State Bar goes to great lengths to protect the public and ensure that those who practice law are capable, both professionally and morally, to act as legal advocates and guardians. Once nonlawyers can direct the actions of their employee-attorneys, this protection will be eroded.

ER 5.4(b) prevents a lawyer from forming a partnership with a nonlawyer if they practice law. This provision also protects the public and ensures the persons who practice law have been screened by the State Bar for moral fitness and academic capability. The elimination of this requirement would subject clients to the judgment of those who have not faced such scrutiny.

The current system provides for professionals who have been evaluated for their fitness and places all attorneys in competition with each other in the private market, which means the public can gain access to the legal system in a fair and open manner. ER 5.4 should be preserved.
Linda Tucker
New Member
Posts:1 New Member

22 May 2020 12:32 PM
I have read the comments already provided and agree with all of those against the Petition. Allowing non- lawyers to, in effect, practice law without a license is a bad idea. Ask anyone who is an attorney who has had to fix what the paralegal or document preparer previously did. Moreover, the legal community will become a target by non-lawyers for investment purposes. The goal will be making as much money as possible, not providing legal services in an ethical, confidential, and competent manner.

Linda S. Tucker
The Tucker Law Firm
1846 E Innovation Park Drive
Oro Valley, AZ 85755
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