Pursuant to Rule 28(D)(b)(ii), I submit the following comments in support of R-18-0004. This Court should adopt the changes proposed by R-18-0004 as a small but important curtailing of Arizona’s unjustified restrictions on the “unauthorized practice of law.”
Although “access to justice” is one of the frequently expressed goals of the organized bar, including the Arizona Bar, the United States falls far short of that goal, especially in its civil system. The World Justice Project, an organization founded as part of an American Bar Association initiative and focused on improving worldwide rule of law, publishes a yearly Rule of Law Index ranking legal systems across the globe based on eight categories and forty-four subcategories. In its recent 2017-2018 report, the United States ranked 96th of 113 countries in access and affordability of civil justice. http://data.worldjusticeproject.org/
(dataset available for download) (last accessed May 18, 2018).
One of the biggest drivers of this high cost is the monopoly on legal representation—especially in court—that lawyers enjoy and enforce through unauthorized practice of law regulations and the resulting high cost of lawyers. Arizona Attorney reported that the median hourly billing rate for Arizona-licensed attorneys was $275 in 2016, and that the rate has “steadily climbed in the four previous surveys.” Olabisi Onisile Whitney & Rick DeBruhl, Attorney Survey: Arizona Lawyers Report on Economic of Practice, Arizona Attorney (Sept. 2016) at 24. Nationally, studies have found that a large proportion of civil cases—76%—had at least one party that was self-represented and that the costs of legal representation is one of, if not the, biggest reasons for this. National Center for State Courts Civil Litigation Project, The Landscape of Civil Litigation in State Courts (2015), https://www.ncsc.org/~/media/Files/PDF/Research/CivilJusticeReport-2015.ashx. And it is not just individuals who cannot afford legal representation. A 2013 study by LegalShield found that the average annual expenditure for legal services by small businesses is $7,600 and, as a result, 60% of small businesses go without assistance in facing serious legal problems. Tom Gordon, Hell Hath No Fury Like a Lawyer Scorned, Wall St. J. (Jan. 28, 2015), http://www.wsj.com/articl...-scorned-1422489433.
Whatever one thinks about the advisability of foregoing an attorney and representing oneself pro se, it is at least an option under Arizona’s current rules that individuals have but businesses do not. As Judge Gass’s Petition notes, this Court’s current Rule 31 deems the owner of a small business representing his or her own business in court to be the unauthorized practice of law. This means that only a lawyer may represent the business. Given the large number of businesses that cannot afford a lawyer, this has the practical effect of, as Judge Gass further notes, foreclosing these businesses’ access to the courts and causing loss by default. The entry of a default judgment has long been recognized by this Court as contrary to public policy. E.g., Richas v. Superior Court, 133 Ariz. 512, 514 (1982) (“The law favors resolution on the merits and therefore resolves all doubts in favor of the moving party” to set aside a default judgment.). Accordingly, entering a default judgment against a party because the party could not afford a lawyer must certainly be against public policy. R-18-0004 would prevent this injustice by allowing certain small businesses to self-represent.
Eventually, this Court must do more to afford the public access to justice. It should further curtail UPL regulations to allow non-lawyers to provide “legal services” in a broader variety of areas. “Many people who cannot afford a licensed attorney need some help, and many of them could probably pay something reasonable for it, but those options are not available.” Laurel A. Rigertas, The Legal Profession’s Monopoly: Failing to Protect Consumers, 82 Fordham L. Rev. 2587, 2684 (2014). Rigid insistence that only lawyers can “practice law” is not borne out by facts. A 2013 study found that more than two-thirds of lawyers in charge of state agencies responsible for enforcing unauthorized-practice laws could not even name a situation during the past year where an unauthorized-practice issue had caused serious public harm. Deborah L. Rhode & Lucy Buford Ricca, Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82 Fordham L. Rev. 2587, 2595 (2014). Not surprisingly, the study also found that the most common source of referrals for enforcement action was attorneys, id. at 2591-92, who stand to profit from restricting competition. The study concluded that “unauthorized-practice law needs to increase its focus on the public rather than the profession’s interest and that judicial decisions and enforcement practices need to adjust accordingly.” Id. at 2588. And this study is just one of several now calling into question lawyers’ existing monopoly on the provision of legal services. Given that
there is little evidence that lawyers are more effective at providing certain legal services or more ethical than qualified nonlawyers, the primary justification for the legal profession’s monopoly of the legal services market does not hold up to scrutiny. Instead, the public would be better served if more nonlawyer representatives - who were subject to educational and licensing requirements - could provide more legal services to the public.
Leslie C. Levin, The Monopoly Myth and Other Tales About the Superiority of Lawyers, 82 Fordham L. Rev. 2611, 2615 (2014); see also Gillian K. Hadfield & Deborah L. Rhode, How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering, 67 Hastings L.J. 1191 (2016) (comparing non-exclusive legal regulation in the United Kingdom to the United States’ monopoly regulatory model).
Given these studies, there is little reason to believe that R-18-0004 will leave those affected by it—small businesses who want or need to self-represent—in worse circumstances. Rather, given what is happening to small businesses in Arizona Courts because of Rule 31’s unauthorized practice of law restrictions, there is every reason to believe they will be better off. Until this Court meaningfully addresses “access to justice” and the monopoly on legal representation enjoyed and enforced by lawyers through unauthorized practice of law regulations, R-18-0004 is the next-best solution to the problems identified by Judge Gass. For these reasons, this Court should adopt R-18-0004.
Paul V. Avelar (AZ Bar No. 023078)
Institute for Justice Arizona Office
398 S Mill Avenue Ste 301
Tempe, AZ 85281
Phone: (480) 557-8300
Fax: (480) 557-8305 http://www.ij.org/arizona