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Last Post 28 Mar 2020 03:59 PM by  Denise Blommel
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
New Member
Posts:1 New Member

20 Mar 2020 10:05 AM
Lori Zucco, on behalf of the Cochise County Bar Association, PO Drawer CA, Bisbee AZ 85603, 520-432-8700, lzucco@cochise.az.gov, Bar #017572

Submits the following from the Cochise County Bar Association's Ad Hoc Committee to Comment on Petition for Rules Changes:

We write in strong opposition to Recommendations 1, 6, and that portion of 9 that would allow legal document preparers speak in court. We do so not because we want to oppose the goal of improving access to justice. Quite the contrary. We oppose these proposals because they are simply bad plans – plans that will not improve anyone’s access to genuine justice. These plans, if adopted, will in all likelihood work to the detriment of those without effective access to the justice system.

The three of us are retired judges, all with substantial experience serving on the bench of the Superior Court in Cochise County. We have been authorized by the Cochise County Bar Association, on its behalf, to submit a comment in opposition to the proposed rule changes.

We agree with many of the thoughtful statements that have been offered in opposition to these recommendations, particularly those of Judge Peter Swann, Geoffrey M. Trachtenberg, Dev Sethi, and Ilya Elena Lerma.

Recommendation 1 would apply the Golden Rule to the Arizona legal system. And no, we don’t mean the good version of the Golden Rule (“Do Unto Others As You Would Have Them Do Unto You”); rather, we mean the good version’s evil counterpart (“Them’s As Gots the Gold Makes the Rules”).

Recommendation 6, and that part of Recommendation 9 that would allow document preparers to speak in court, would not improve access to justice for anybody. Rather, they would extend the reach of incompetence so that more a far greater segment of the public can be victimized. Recommendation 6, if adopted, would set Arizona on a path to permit minimally-trained non-lawyers to give advice, counsel, and in-court representation to people who may not grasp the implications of these non-lawyers’ limitations. LLLPs will market their services to those of limited means who seek legal assistance in a vast array of significant matters with potentially serious consequences. Undoubtedly, some of the clients of such LLLPs will get what they pay for. But it seems highly probable to us that many vulnerable people in stressful situations will be preyed upon by ill-trained or unscrupulous LLLPs.

Regarding that portion of Recommendation 9 to allow document preparers to speak in court, no one should be lulled into a false sense of security just because the document preparers will only be able to speak if “authorized” by the court. Is there anyone who doubts that non-lawyer justices of the peace – and even a few law-trained superior court judges – will freely “authorize” document preparers to say anything they want?

Karl Elledge
State Bar No. 005844

Wallace R. Hoggatt
State Bar No. 006012

Charles A. Irwin
State Bar No. 010301

Cochise County Bar Association
Ad Hoc Committee to Comment on Petition for Rules Changes
C/O Wallace R. Hoggatt

Lincoln Combs
New Member
Posts:1 New Member

20 Mar 2020 03:17 PM
Lincoln Combs
Gallagher & Kennedy
2575 E. Camelback Road, Suite 1100
Phoenix, AZ 85016-9225
Main: 602-530-8000

I oppose the Petition for all of the reasons expressed in other comments, and likewise join in Judge Swann's eloquent dissent from the Task Force's recommendations. The Task Force's recommendations and resulting Petition would enact sweeping changes to the practice of law in Arizona, but appear to be based solely on a single academic study. I strongly disagree that allowing non-lawyers to essentially practice law and own law firms will have the intended result of increasing access to justice, and the unintended consequences of deregulation are likely to be both massive and harmful to both that goal and the legal profession generally.

The tone of the Task Force's recommendations addressing the very real problem of increasing access to justice and supportive comments like our Welsh colleague Mr. Passmore's statements are to the effect of "innovation and change will make it better!" But who will be doing the innovating? Surely the change will be led by profit-seeking corporations unbound by ethical standards seeking to maximize revenue from their clients. The ethical failings of lawyer that exist under the current ethical regime and that Mr. Passmore highlights do not justify destroying that regime. Indeed, it seems like a strange remedy for the problem of increasing access to ethical, competent attorneys by abrogating the ethical rules and replacing them with the profit motive.

It is worth noting that the California State Bar recently rejected a much more limited deregulatory proposal that is not nearly as broad as the Petition.


The Court should follow suit. Ideological experiments in free market access to legal services should be at most very limited in scope and subject to intense long-term study before being imposed on the entire Arizona legal system. The Petition skips those steps and proceeds right to massive change.

Finally, I plead with the Court not to consider such an enormous change during the current pandemic crisis. Change to all aspects of life in America and Arizona is already being imposed by the coronavirus and resulting necessary governmental efforts to combat its spread. The unintended consequences of the current crisis will not be fully realized for months or years to come. Now of all times is not the time for the Court to experiment with a radical alteration of the practice of law in Arizona.

Respectfully, the Petition should be denied.

Geoff Trachtenberg
New Member
Posts:3 New Member

20 Mar 2020 04:28 PM
First, I'd normally not say anything, but it's troubling when those who urge for an ethical rule change before this Court do not themselves appear to be following existing ethical rules. Skymark Advisors Law Group, LLC is an example. The entity, whose principal lawyer commented in favor of the Petition, is currently owned and controlled by a lawyer and a non-lawyer.

This is revealed on the website listed in the comment itself, skymarkadvisors.com, which notes the "principles [sic] of this firm [are] Jared Farnsworth CFP® and Daniel Esparza Esq.,” and confirmed by public filings with the Arizona Corporation Commission (the “Commission”) for Skymark Advisors Law Group, LLC. [Footnote: To be sure, there are two business entities the Commission’s website—Skymark Advisors Law Group, LLC and Skymark Advisors, LLC—but both list the same lawyer and non-lawyer principals at the same address.]

Unless I’m misunderstanding something, this business arrangement violates our existing rules. To that extent, this Court and its rule-making process should not be used or blindly influenced by those who merely seek to sanction their desired business models, especially by those who seem to have already disregarded the Court’s rules.

Second, I’d like to point out that a much less radical approach to the current Petition was being considered in California, which was contemplating a “regulatory sandbox” to allowing non-lawyers to own and operate law firms. This more conservative proposal was just recently “put on ice" for additional study after more the 3,000 lawyers and trade groups criticized the proposed changes as posing potential dangers to the justice system and legal consumers. Arizona should do the same.

Third, the article linked below is instructive in that it shows what happens when private equity took over the dental profession, something I’d raised in my initial comment. In my view, the “access to justice” mantra is being co-opted as Trojan Horse; it’s being used by private equity and hedge funds who desire to squeeze every last dollar out of the legal practice—it has nothing to do with providing legal services at a lower cost or to the underserved.


And fourth, this Court recently decided Ansley v. Banner Health, 2020 WL 1126300 (March 9, 2020), which ended a lengthy dispute with Arizona hospitals seeking to "balance bill” AHCCCS patients. The matter was essentially handled pro bono on the expectation that attorneys’ fees, if any, would be awarded under the private attorney general doctrine. They were and the Court recognized that the effort was “unquestionably of great societal importance.” My firm was the primary vehicle for this litigation and, while we are truly grateful for the award of fees, the simple fact is that we could never have undertaken this costly, decade-long project if we were beholden to non-lawyer shareholders or business people. Those kinds of people would not have seen the value in assisting these impecunious clients. Putting those types of business-people at the helm of law firms will kill our kind of socially-responsible law practice.

Again, I’d urge you to please study this more (or pilot a sandbox approach) before experimenting with Arizona’s entire justice system by allowing non-lawyers to own or operate law firms.

Geoffrey M. Trachtenberg
Levenbaum Trachtenberg, PLC
362 N. 3rd Avenue
Phoenix, AZ 85003
Bar No. 19338
Yolanda Fox
New Member
Posts:30 New Member

25 Mar 2020 12:43 PM
Gary L. Stuart
Arizona Lawyers Foundation Board of Trustees
7000 North 16th Street, Ste. 120
Phoenix, AZ 85020
gstuart@keyed.com or gary.stuart@asu.ed
State Bar of Arizona
New Member
Posts:73 New Member

26 Mar 2020 03:00 PM
The State Bar of Arizona hereby gives notice that it will file its comment during the second comment period. Further, the State Bar respectfully asks that the comment periods for this Petition and Petition R-20-0030 be aligned. Finally, on behalf of staff and its constituency, the State Bar requests a 60-day enlargement of time, or more as circumstances related to COVID-19 may warrant. This request for extension is made based on 1) the complexity of the proposed rule changes and associated ACJA code provisions, including still TBD portions, 2) stakeholder desire to provide meaningful input to the Court, and 3) curtailed meetings and shifted priorities during the prior and coming weeks due to the COVID-19 pandemic.

Lisa M. Panahi, Bar No. 023421
General Counsel
State Bar of Arizona
4201 N. 24th Street, Suite 100
Phoenix, AZ 85016-6288
(602) 340-7236
Mark Sippel
New Member
Posts:1 New Member

27 Mar 2020 01:33 PM
Mark Sippel
707 E Beale St
Kingman, AZ 86401
Phone: (928) 753-2889

How does non lawyer members managers etc who have the profit motive foremost help the "access to justice gap" The many other comments are on target. I cannot help but wonder if those who are in favor of this have little to no experience in mall firm, rural poverty practice. I seem to recall the bankruptcy and divorce firm debacle with non lawyers running the show. This rule change should be rejected.
City of Scottsdale Prosecution
New Member
Posts:1 New Member

27 Mar 2020 01:49 PM
Matthew S. Mueller, Assistant City Prosecutor II
On behalf of Luis Santaella, Acting City Prosecutor
City of Scottsdale
3700 N 75th Street #B
Scottsdale, AZ 85251
(480) 312-2710

The City of Scottsdale Prosecutor’s Officer strongly opposes the proposed Supreme Court Rule 31.3(c)(3) as it applies to municipal courts. The proposed change would vastly expand the existing rule to allow non-lawyers to represent a business or legal entity in not just Justice Court, but also in municipal courts where both civil and criminal cases are heard. Legal entities would be allowed to be represented in municipal courts in all circumstances under the proposed rule, which is contrary to Arizona case law and the general principle followed in federal courts and, frankly, the United States as a whole. See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (“It has been the law for the better part of two centuries… that a corporation may appear in the federal courts only through licensed counsel.”), and Jadair Inc. v. U.S. Fire Ins. Co., 209 Wis. 2d 187, 205, 562 N.W.2d 401, 408 (1997) (“A corporation is not a “natural person,” and therefore, Blueprint cannot fall within the term ‘any suitor’ for purposes of corporate self-representation.”).

Courts have recognized that the principle that a corporation must represented in court by an attorney has its basis in common law. See Nixon, Ellison & Co. v. Sw. Ins. Co. of Cairo, 47 Ill. 444, 446 (1868) (“We find that as early as Lord Coke's time it was the recognized doctrine that a corporation aggregate could not appear in person to an action. 1 Coke Litt. 66 b. And we find the same rule announced in Comyn's Digest, Pleader 2, B. 2, where it is said, speaking of a corporation aggregate: ‘But the corporation must appear by attorney, appointed under their common seal.’ And Chitty, vol. 1, p. 551, lays down the rule, that ‘A plea by a corporation aggregate, which is incapable of a personal appearance, must purport to be by attorney.’”). This general rule is followed by federal as well as State courts.

The Arizona Supreme Court has long held that, “Absent statutory authority a corporation cannot practice law even in its own behalf. A corporation cannot appear in court by an officer who is not an attorney, and it cannot appear in propria persona.” Ramada Inns, Inc. v. Lane & Bird Advert., Inc., 102 Ariz. 127, 128, 426 P.2d 395, 396 (1967), citing Paradise v. Nowlin, 86 Cal.App.2d 897, 195 P.2d 867; Tuttle v. Hi-Land Dairyman's Ass'n, 10 Utah 2d 195, 350 P.2d 616; Nicholson Supply Co. v. First Federal Savings, Fla.App., 184 So.2d 438; Niklaus v. Abel Construction Co., 164 Neb. 842, 83 N.W.2d 904. Additionally, “Until a corporation appears in court by counsel, its appearance is defective.” State v. Eazy Bail Bonds, 224 Ariz. 227, 229, 229 P.3d 239, 241 (Ct. App. 2010), citing Boydston v. Strole Dev. Co., 193 Ariz. 47, 50, ¶ 12, 969 P.2d 653, 656 (1998) (“a corporation may cure its defective appearance after being given a reasonable opportunity by the court to do so”).

Consistent with this principle, the current Supreme Court Rule 31(d) provides for only a limited number of exceptions to the practice of law by non-lawyers. It should be noted that none of these exceptions concern criminal proceedings. In fact, Rule 31(d)(3), which the proposed Rule 31.3(C)(3) would significantly expand, only applies to Justice Courts and police courts, not municipal courts, and even then, in very limited circumstances. The current requirement that the legal entity must be “an original party to or a first assignee of a conditional sales contract, conveyance, transaction or occurrence that gave rise to the cause of action in such court, and the assignment was not made for a collection purpose” makes clear that the rule only anticipated legal entities participating in civil proceedings in Justice or police courts through a non-lawyer. AZ ST S CT Rule 31(d).

The proposed Rule 31.3(c)(3) contains no such limiting language and would completely overturn this longstanding precedent. Under the proposed rule, a corporation cited with a criminal violation or made a party to a civil action can represent itself in municipal court in any proceeding. Such an expansion would create confusion, particularly for larger corporations: what proof must the court require of the corporate representative to show that he has authority to represent the corporation or his or her business partners under proposed Rule 31.3(c)(3)(B)? How, or should, municipal courts protect the interests of the legal entity against a representative who lacks the legal skills, character, or basic competence to appear in court? Would municipal courts find themselves compelled to give more leeway to non-lawyer representatives of corporations regarding poorly drafted pleadings or arguments or behavior in courts? How would these non-lawyer representatives be held responsible for what would be considered unethical behavior if committed by attorneys, especially in criminal matters?

This additional confusion and burden on municipal courts is unnecessary and should be avoided at all costs. Allowing those that do not have sufficient legal knowledge to represent businesses and other legal entities in court will create significant inefficiencies for municipal courts as they attempt to address their cases without a full understanding of in civil or criminal procedures. We therefore strongly oppose this proposed rule change.
Victor Garnice
New Member
Posts:2 New Member

27 Mar 2020 04:15 PM
Interestingly, the State Bar's own "Arizona Attorney Daily 5" daily email included the following article:

"Dental chain overbites in bid for profits

"Private-equity firms have bought dental offices and drilled down on dentists to floss more profits out of patients – leading to overtreatment allegations. One company may take the crown, though. Its patients say dentists told them they needed fillings for several cavities – when they had none. One woman sued after a dentist did seven root canals on her 3-year-old son. Former employees say they were pressured to bridge the gap between financial targets and scheduled treatments. Regulation of these chains is nonexistent or toothless. Though unheard of 20 years ago, private-equity dental chains now make up 16% of the market."

It linked to the full story at https://www.usatoday.com/in-depth/n...36783002/.

Certainly the expansion of these dental offices increased consumer access to dental services and increased competition. But at what cost to the consumers and their trust in, respect for and reliance upon the professionalism of the practitioners in the profession?

This should serve as a cautionary tale and should make any supporter of the proposed Rules changes have serious second thoughts.

Victor Garnice
Arizona Bar No. 004485
14648 N Scottsdale Rd Ste 130
Scottsdale, AZ 85254
Phone: (480) 556-5800
New Member
Posts:3 New Member

27 Mar 2020 05:01 PM
James W. Rappaport

Pima County Bar Association, Rules Committee

Mailing address:
177 North Church Avenue
Tucson, AZ 85701

Phone Number:

Email address:

Bar Number:
Denise Blommel
New Member
Posts:1 New Member

28 Mar 2020 03:59 PM

I have been a proud member of the State Bar of Arizona since 1978. I have been active in both the State Bar Sections, serving as Chair of the Employment & Labor Section and Co-Chair of the Workers’ Compensation Section, and State Bar CLE, serving as a frequent presenter and co-chairing a track at CLE by the Sea as well as being an author of the Arizona Employment Law Handbook. I am honored to have won the Member of the Year award in 1999 and the Employment & Labor Section Member of the Year award in 2014.

I am respectfully opposed to Supreme Court Rule Change Petition R-20-0034 (“Petition”) Section VI with respect to “expanding the universe of legal professionals” to create the Limited License Legal Practitioner or LLLP.

I have been hearing about an “access to justice gap” ever since my law school days. The Petition and the Task Force make the assumption that there are too many pro per litigants because they cannot afford legal services. Indeed, Arizona’s poverty rate exceeds 20% of the population and the lack of sustainability rate (families earning less than the social services safety net costs) is even greater. There is no cost for lawyers for those indigent eligible for government-subsidized services, other than waiting in line due to underfunding of legal services agencies. The major concern is with the vast middle class whose wealth index has been decreasing over the decades.

I wonder if the plethora of unrepresented parties is due strictly to the unaffordability of legal help or whether other factors have been investigated. In my career representing employees, small businesses, association members, and injured workers, it appears that an overwhelming number of people want “their day in court” and will not accept legal advice. An overriding American cultural icon is individualism or Do It Yourself. The courts understand this by providing helpful information in kiosks and online.

Another cultural icon is the concept that services are free. The healthcare industry is continuously challenged by this issue. In other words, it is probable that the simple cost of legal services, of which many in what remains of the middle classes can pay, is not the sole driver behind the unrepresented parties. I believe many Arizonans simply do not want to pay a lawyer to help them or are frustrated when a lawyer tells them something they do not want to hear. This is not an access to justice gap – this is a choice. And, providing another tier of legal professional will not have any impact upon this issue.

I am concerned that the Task Force and the Petition did not mention the State of Washington’s eight-year failed experiment with Limited License Legal Technicians as outlined in Rebecca Donaldson, “Law by Non-Lawyers: The Limit to Limited License Legal Technicians Increasing Access to Justice," 42 SEATTLE U. L. REV. 1 (2018). I understand that the LLLTs in Washington are struggling to earn a living, charging by the hour just like the lawyers, and not increasing the access to justice by the marginalized. There appear to be less than 50 of these LLLTs after eight years. I must ask why we are reinventing the wheel, especially because the Washington wheel appears to be broken.

As a member of the American Bar Association, I know that the House of Delegates recently endorsed regulatory innovations to improve access to justice. However, ABA Resolution 115 contains two cautions:

FURTHER RESOLVED, That the American Bar Association encourages U.S. jurisdictions to collect and assess data regarding regulatory innovations both before and after the their adoption of any innovations to ensure that changes are effective in increasing access to legal services and are in the public interest of clients and the public; and
FURTHER RESOLVED, That nothing in this Resolution should be construed as altering recommending any changes to any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to nonlawyer ownership of law firms, the unauthorized practice of law, or any other subject.

The Petition does not provide for the collection of data. Rather, it passes off the “details” of the LLLP program to working groups (see footnote 20 on page 33). Politicians call this “kicking the can down the road.” Additionally, the Petition requests specific changes, contrary to ABA Resolution 115, to Rule 5.4 and the unauthorized practice of law.

Some of those LLLP “details” are critically important to the public as well as to the members of the State Bar. If these “professionals” are going to give advice and appear in court or before administrative agencies, what kind of education will they be required to have? Please remember that about one-half of the teachers in Arizona do not have basic qualifications because of the underfunding of schools, poor teacher pay, and few barriers to entry to that profession. Some of those teaching have no college degree.

Who will pay for the LLLP education and training? How will the limited practice areas be chosen? Who will pay for their licensing and discipline? Will they have to undergo testing? There is evidence that the Washington LLLT program has failed to achieve the access to justice which ostensibly is the reason for the creation of the LLLP.

The Petition states that there is no evidence that LLLPs will hurt the income potential of lawyers. However, there is no citation to the Seattle University law review article or empirical market evidence from an eight-year timeframe in Washington. I am also concerned about the creation of a new bureaucracy to license and discipline LLLPs.

There is an important social justice aspect to this situation. It is blatantly unfair to the poor and marginalized to give them “help” from unqualified people who are not real lawyers. To say that it is “innovative” and “assisting the little guy/gal” to give them poor help rather than no help, is to perpetuate the gap between the classes in modern America. If one has no money, one can only afford an individual who never went to law school and is just trying to make a buck like everyone else. This is unfair – to the law schools, to those of us who went to law school and passed the bar, to those of us who give pro bono services, and to the poor and marginalized who will just have to be satisfied with “half a loaf.”

Please do not approve Section VI. Thank you for your consideration.

Denise M. Blommel, Attorney
Denise M. Blommel, PLLC
6945 E. Sahuaro Drive, Suite 125
Scottsdale, AZ 85254

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