April 23, 2007
Arizona occupies an unusual, perhaps unique, position within the American legal profession. Unlicensed people can practice law without fear of prosecution.
"Why pay a lawyer?" ask billboards on Phoenix-area highways. Radio and television programs in the state are filled with advertisements for document preparation agencies and independent paralegals.
"The truth is," said Lynda Shely, director of ethics of the State Bar of Arizona. "My 7-year-old twins could open up a document preparation service."
Shely, who moved to Arizona from New Jersey seven years ago, is distressed by the situation, which she believes has caused a great deal of hardship to citizens who mistakenly think the non-lawyers are regulated by the state.
She says the Arizona bar's consumer protection committee has drawers full of complaints about citizens getting improper advice or poorly drafted documents from non-lawyers. She admits, however, that victims have been reluctant to come forward publicly and the state legislature has been slow to react.
"Arizona is unusual in that only a small handful of legislators are lawyers," said Shely. "I think there's a lack of awareness of the harm caused by people giving legal advice who aren't trained."
Arizona may be alone in its approach to non-lawyers engaging in the practice of law. A 1999 survey by the American Bar Association's Standing Committee on Client Protection found that of the 51 American jurisdictions (the 50 states and the District of Columbia), Arizona was the only state with no authority to enforce violations of its unauthorized practice of law provisions.
Arizona Court Rule 31, issued by the state Supreme Court, forbids non-lawyers from representing other people in court. But the rule is not applied to out-of-court activities by non-lawyers. Arizona hasn't made the unauthorized practice of law a crime or misdemeanor since 1984, except in the area of immigration law.
Like other American jurisdictions, Arizona once had a misdemeanor statute on the books for unauthorized practice. But a jurisdictional dispute between the state Supreme Court and the state legislature over managing the state bar association resulted in the law being "sunsetted," or allowed to expire.
In 1993 and 1995, bills to reinstate some sort of criminal penalty for the unauthorized practice of law died in committee. According to Shely, the state attorney general has the authority to investigate non- lawyers for consumer fraud, but so far has not brought any prosecutions.
Not everybody is convinced that Arizona's hands-off approach to the practice of law is harming people. James C. Turner, executive director of HALT in Washington, D.C., which describes itself as a legal reform organization, notes that Arizona citizens have access to self-service centers, which provide legal documents that can be obtained from the Internet.
"If it ain't broke, don't fix it," Turner said. "There's been a lot of discussion in the bar that there is a significant consumer protection problem posed by non-lawyer activities in Arizona. But the state and local bar doesn't come to this issue with clean hands. There's a long history of the organized bar acting like a trade association and protecting the monopoly lawyers have on providing legal services. That doesn't serve the public well."
HALT, according to Turner, defines the unauthorized practice as someone who is not an attorney pretending that he or she is one. As long as people know what they're getting, he said, they should be allowed to make their own choices.
Robert James, who helped pioneer the Arizona self-service centers, said the court system is attempting to ensure that the public can obtain low-cost documents and accurate legal information. He said that 80 percent of divorces in Maricopa County, which includes Phoenix and is home to 3 million of Arizona's 4 million citizens, are handled without a lawyer.
James, the director of the Self-Service Center for the Superior Court of Maricopa County, said the centers help self-represented litigants come to court better prepared. But they don't guarantee the citizen will be able to handle every legal problem.
"This is like the Home Depot meets the library," said James. "The Home Depot can give you some advice. But the bottom line is, if you don't know how to use a wrench and you screw up the project, it's your responsibility."
New Jersey is one state that has unauthorized practice laws and enforces them. A statute makes it a misdemeanor to engage in the unauthorized practice of law and upgrades the offense to a fourth-degree crime if the defendant either: creates a false impression that he or she is licensed to practice law; derives a benefit; or in fact causes injury to another.
© 2007, Newark Morning Ledger Co., All Rights Reserved, The Star-Ledger (Newark, New Jersey)
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