I wholeheartedly support this important Rule Change Petition, which would amend ER 1.15 and 2.4 of Rule 42 of the Rules of the Supreme Court of Arizona and Rule 43 of the same rules to allow lawyers who serve as third-party neutrals or expert witnesses to hold unearned fees related to those services in their client trust accounts.

I am in my 40th year of practice as a lawyer, and my 30th year of practice as a professional arbitrator for the American Arbitration Association. I am an active member of the State Bar of Arizona's Alternative Dispute Resolution ("ADR") Section. On September 10, 2013 I was a panelist at an ADR Section CLE at the offices of the State Bar of Arizona on the subject of "AZ ADR ETHICAL PERILS AND PITFALLS FOR ARIZONA NEUTRALS," which was attended by about 80 Arizona lawyers, all of whom also served as arbitrators, mediators or other "neutrals" in their respective professional practices. One of the topics covered was that lawyers acting as "neutrals" (e.g., arbitrators, mediators, special masters, receivers, etc.) were and presently are prohibited from keeping money deposited with them by "non-client," third persons for the lawyer's work as a "neutral" into the lawyer's IOLTA Trust Account. This came as a tremendous surprise to most of those in attendance, since the same public policy considerations and interests that inform and inspire the IOLTA Trust Account rules to protect clients' advance deposits for legal fees and costs should logically apply to advanced fees and costs deposited by non-client, "third parties" hiring lawyer neutrals for for ADR services granting them access to justice.

"The State Bar of Arizona exists to serve and protect the public with respect to the provision of legal services and access to justice. Consistent with these goals, the State Bar of Arizona seeks to improve the administration of justice and the competency, ethics, and professionalism of lawyers practicing in Arizona." While it is true that "clients" are members of the public, so are non-client third persons who repose their trust and confidence in lawyers acting as neutrals while seeking access to justice via arbitration, mediation, or other "neutral" services performed by such lawyers. It is utterly arbitrary and capricious to require IOLTA Trust Account rules for the benefit of lawyers' CLIENTS to fulfill the State Bar's mission, while forbidding non-client THIRD PERSONS to avail themselves to the same public policy protections. This proposed rule change seeks to address and correct this irrational disparity.

Also, the current IOLTA Rules effectively "foist" on lawyer neutrals additional accounting and/or financial services charges (if lawyers open separate, non-IOLTA accounts for such funds) not required of other lawyers. Finally, interest earned on IOLTA Trust Account Deposits is paid to fund legal aid to the needy, but since the Great Recession interest rates have been at an all time low (until recently), which has resulted in a huge loss of revenue for legal aid services in Arizona. Allowing lawyer neutrals to deposit third party funds for neutral services will increase IOLTA funds available for payment of legal aid services in Arizona. It's a "win-win" for everyone.

I wholeheartedly support and endorse this important, proposed rule change.

Mark Lassiter, SBN#016241
1423 S Higley Rd, Mesa, AZ 85206
(480) 218-4445
Fellow, College of Commercial Arbitrators
Arbitrator/Mediator - American Arbitration Association (serving on its Commercial, Construction, Large & Complex Case, Emergency Relief, and Consumer Arbitration Panels)
Arbitrator/Mediator - National Academy of Distinguished Neutrals
Arbitrator - International Centre for Dispute Resolution
Member - ADR Section of the State Bar of Arizona

The Nineteen Arizona attorneys named below, who are members of the Executive Counsel of the Alternative Dispute Resolution Section of the Arizona State Bar, support and endorse the Petition to amend Ethical Rules 1.5 and 2.4. The proposal confirms that it is permissible for mediators, arbitrators, and other lawyers acting as third-party neutrals to use their IOLTA accounts to hold advance payments for services, as long as they follow IOLTA rules for those accounts. The proposed amendments also make clear that mediators, arbitrators and third-party neutrals are not required to deposit advance payments into IOLTA accounts. The proposed amendment allows attorney ADR practitioners to choose to extend IOLTA protection to funds paid by parties who are not clients, and allows interest on those funds to generate IOLTA revenue.

Respectfully submitted,

Lee L Blackman, ADR Section Chair
Blackman ADR Services
9750 E Spring Hill Pl. Tucson, AZ 85749-7113
Phone: 310-346-6926:
Email: [email protected]

Alexis L Pheiffer, ADR Section Vice-Chair/Chair Elect
Law Office of Alexis Pheiffer PLLC
13236 N. 7th Street, Suite 4 #294
Phoenix, AZ 85022
Phone: 602-330-9262
Email: [email protected]

Gregory P Gillis, Immediate Past ADR Section Chair
Sacks Tierney PA
4250 N Drinkwater Blvd. Fl. 4
Scottsdale, AZ 85251-3693
Phone: 480-421-6101
Email: [email protected]

Robert F Copple, ADR Section Financial Officer
Copple & Associates PC
9274 E Desert Trail
Scottsdale, AZ 85260-4542
Phone: 480-614-5771
Email: [email protected]

Jeremy M Goodman, ADR Section Secretary
Goodman Law PLLC
PO Box 90758
Phoenix, AZ 85066-0758
Phone: 602-476-1114
Email: [email protected]

Jeremy B Ashworth
Lerner and Rowe
2701 E Camelback Road Suite 140
Phoenix, AZ 85016-4323
Phone: 602-952-3104
Email: [email protected]

Nicholas James Brown
The Cavanagh Law Firm PA
1850 N Central Ave. Suite 2400
Phoenix, AZ 85004-4559
Phone: 602-322-4084
[email protected]

Nicholas Jason Enoch
Lubin & Enoch PC
349 N 4th Ave.
Phoenix, AZ 85003-1505
Phone: 602-234-0008
Email: [email protected]

Michele M Feeney
Michele M Feeney LLC
6525 N Central Ave.
Phoenix, AZ 85012-1139
Phone: 602-682-7513
Email: [email protected]

Sherman D Fogel
Sherman D Fogel PA
2850 E Camelback Rd Ste 200
Phoenix, AZ 85016-4316
Phone: 602-264-3330
Email: [email protected]

Renee Gerstman
Gerstman Law
5635 N Scottsdale Road, Suite 170
Scottsdale, AZ 85250-5945
Phone: 602-200-0112
Email: [email protected]

Alona M Gottfried
Simmons & Gottfried PLLC
8160 E Butherus Drive, Suite 7
Scottsdale, AZ 85260-2523
Phone: 480-998-1500
Email: [email protected]

Robert J Itkin
Open Mind Ventures LLC
18290 N 93rd Pl. Unit 21
Scottsdale, AZ 85255-6051
Phone: 602-738-5000
Email: [email protected]

Steven P Kramer
Law Office of Steven P. Kramer
4249 E Sahuaro Drive
Phoenix, Arizona, 85028
Phone: 602-558-5580
email: [email protected]

Jerome Allan Landau
Jerome Allan Landau PC
8711 E Pinnacle Peak Road Suite 208
Scottsdale, AZ 85255-3517
Phone: 480-203-9903
Email: [email protected]

Richard K Mahrle
Gammage & Burnham PLC
40 N Central Ave., Fl 20
Phoenix, AZ 85004-4470
Phone: 602-256-0566
Email: [email protected]

Kathi M Sandweiss
Jaburg & Wilk PC
3200 N Central Ave. Fl. 20
Phoenix, AZ 85012-2403
Phone: 602-248-1052
Email: [email protected]

Donna F Williams
The Donna Williams Group
PO Box 327
Litchfield Park, AZ 85340-0327
Phone: 602-318-3723
Email: [email protected]

Beth Jo Zeitzer
ROI Properties
2001 E Campbell Ave. Suite 202
Phoenix, AZ 85016-5574
Phone: 602-319-1326
Email: [email protected]

Comment of the State Bar of Arizona
Lisa M. Panahi
Bar No. 023421
General Counsel
State Bar of Arizona
4201 N. 24th St., Suite 100
Phoenix, AZ 85016
602-340-7236
[email protected]

Pursuant to Rule 28 of the Rules of the Supreme Court, Community Legal Services (“CLS”), DNA People’s Legal Services (“DNA”), Southern Arizona Legal Aid (“SALA”), and the William E. Morris Institute for Justice (“MIJ”) submit the attached comments in support of the Petition to Amend ERs 1.15 and 2.4 and Rule 43, Ariz. R. Sup. Ct.

Respectfully submitted this 1st day of May 2023.

ANDREW P. SCHAFFER, AZ Bar. No. 037352
BRENDA MUÑOZ FURNISH, AZ Bar. No. 027280
MICHELLE J. SIMPSON, AZ Bar. No. 020199
WILLIAM E. MORRIS INSTITUTE FOR JUSTICE
3707 North Seventh Street, Suite 300
Phoenix, Arizona 85014-5095
(602) 252-3432
[email protected]
[email protected]
[email protected]

Patricia A. Sallen
Ethics at Law PLLC
3420 North 42nd Street
Phoenix, Arizona 85018
Bar No. 012338
480-290-4841
[email protected]
Attorney for Petitioner
Arizona Bar Foundation