Arizona

Innovations of Note

Arizona exempts certain document preparers from Unauthorized Practice of Law claims. It also allows for court navigators.

The Arizona Supreme Court issued an order forming the Task Force on Delivery of Legal Services . The Task Force released it’s Report and Recommendations on October 4, 2019.

Differences from ABA Model Rules

Rule 1.2(c) Limited Scope Same as Model Rule
Rule 5.4(a) Fee-Sharing Same as Model Rule
Rules 5.4(b)-(d) Non-Lawyer Ownership Same as Model Rule
Rule 5.5. Unauthorized Practice of LawSignificant Changes
Rule 5.7 Law Related ServicesSignificant Changes
Rule 6.5 Limited ScopeSame as Model Rule
Rule 7.2(b) Lawyer ReferralSignificant Changes
Technology Competency RulesYes
Cloud Computing AdvisoryYes

ABA Rule 1.2(c) (Limited Scope)

Same as Model Rule

Relevant Comments:

Agreements Limiting Scope of Representation

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client.  Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage.  A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances.  If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation.  Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.  See ER 1.1.

[8] Although paragraph (c) does not require that the client’s informed consent to a limited representation be in writing, a specification of the scope of representation will normally be a necessary part of the lawyer’s written communication of the rate or basis of the lawyer’s fee as required by ER 1.5(b).  See ER 1.0(e) for the definition of “informed consent”.

[9] All agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law.  See, e.g., ERs 1.1, 1.8 and 5.6.

Modified by:

Arizona State Bar Ass’n Op. 06-03 (2006) (An attorney who limits the scope of representation and coaches the client or ghost writes papers must direct the client to be truthful and candid in the client’s activities.  While an attorney is not required to disclose to opposing counsel that the attorney is providing limited-scope representation, the attorney must maintain client confidentiality if doing so.

Arizona State Bar Ass’n Op 05-06 (2005) (An attorney representing a client may enter into an agreement limiting the scope of services to a specific and discrete task. An attorney is required to have sufficient knowledge and skill to provide reliable counsel to the limited scope client as to the advisability of the action requested by the client. The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona.)

Arizona State Bar Ass’n Op. 91-03 (1991) (A lawyer “may ethically represent a client on a limited basis as long as: 1) the client consents after consultation; 2) the scope of the representation is not so limited as to cause the attorney to violate the Ethical Rules or other law; and 3) the attorney does not advise the client to do something that the attorney would be prohibited from doing personally.”)

ABA Rule 5.4(a) (Fee-sharing)

Same as Model Rule.

Relevant Comments:

[1] The provisions of this Rule express traditional limitations on sharing fees.  These limitations are to protect the lawyer’s professional independence of judgment.  Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client.  As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment.

[2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another.  See also ER 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).

Modified by:

Peterson v. Anderson, 745 P.2d 166 (Ariz. 1987) (lawyer licensed in other state is nonlawyer for purposes of fee-sharing rule)

Ariz. Ethics Op. 00-10 (2000) (law firm may pay staffing agency based upon number of hours worked by temporary lawyer and agency may in turn pay lawyer out of that amount; firm may not, however, pay agency based upon amounts actually received from client)

ABA Rule 5.4(b-d) Non-Lawyer Ownership

Same as Model Rule.

Relevant Comments:

[1] The provisions of this Rule express traditional limitations on sharing fees.  These limitations are to protect the lawyer’s professional independence of judgment.  Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client.  As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment.

[2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another.  See also ER 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).

ABA Rule 5.5 (UPL)

ER 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law


(b) Except as authorized by these Rules or other law, a lawyer who is not admitted to practice in Arizona shall not:

(1) engage in the regular practice of Arizona law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice Arizona law

    (d) A lawyer admitted in another United States jurisdiction, or a lawyer admitted in a jurisdiction outside the United States, not disbarred or suspended from practice in any jurisdiction may provide legal services in Arizona that exclusively involve federal law, the law of another jurisdiction, or tribal law.

    (e) A lawyer admitted in another United States jurisdiction, or a lawyer admitted in a jurisdiction outside the United States, not disbarred or suspended from practice in any jurisdiction, and registered pursuant to Rule 38(a) of these rules, may provide legal services in Arizona that are provided to the lawyer’s employer or its organizational affiliates and are not services for which  pro hac vice admission is required.

    (f) Any attorney who engages in the authorized multijurisdictional practice of law in Arizona under this rule must advise the lawyer’s client that the lawyer is not admitted to practice in Arizona, and must obtain the client’s informed consent to such representation.

    (g) Attorneys not admitted to practice in Arizona, who are admitted to practice law in any other jurisdiction in the United States and who appear in any court of record or before any administrative hearing officer in Arizona, must also comply with Rules of the Supreme Court of Arizona governing pro hac vice admission. See Rule 39.

    (h) Any attorney who engages in the multijurisdictional practice of law in Arizona, whether authorized in accordance with these Rules or not, shall be subject to the Rules of Professional Conduct and the Rules of the Supreme Court regarding attorney discipline in  Arizona.

Relevant Comments:

[1] Paragraph (a) applies to the unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person. The definition of the practice of law is established by law and varies from one jurisdiction to another. For Arizona’s definition, see Rule 31(a)(2)(A). Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Paragraph (a) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See ER 5.3. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law, for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

[2] Other than as authorized by these Rules or other law or this Rule, a lawyer who is not admitted to practice in Arizona violates paragraph (b)(1) if the lawyer engages in the regular practice of Arizona law in Arizona. A lawyer who is not admitted to practice in Arizona violates paragraph (b)(2) if the lawyer fails to state in any advertisement or communication that targets or specifically offers legal services to Arizona residents that: (1) the lawyer is not licensed to practice Arizona law and (2) the lawyer’s practice is limited to federal legal matters, such as immigration law, tribal legal matters, or the law of another jurisdiction. See ERs 7.1(a) and 7.5(b).

[3] There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in Arizona that involve Arizona law under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized.

[4] There is no single test to determine whether a lawyer’s provision of legal services involving Arizona law are provided on a “temporary basis” in Arizona, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides legal services in Arizona that involve Arizona law on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

Modified by:

Ariz. Code of Judicial Admin. § 7-208 (Document preparers are allowed and not considered practicing law)

Arizona Ethics Op. 99-07 (1999) (despite fact that state law permits nonlawyers to work as public adjusters, such activities constitute practice of law and lawyers may not assist them in such activities).

Ariz. Ethics Op. 2003-03 (2003) (lawyer may not help paralegal draft or enforce contingent-fee agreement for paralegal’s unsupervised legal services)

Ariz. Ethics Op. 10-04 (2010) (lawyer may share fees, in accordance with Rule 1.5, with out-of-state lawyer who referred matter to lawyer, if out-of-state lawyer eligible to provide temporary legal services under Rule 5.5 or if necessary is admitted pro hac vice).

Ariz. Unauthorized Practice of Law Op. 10-02 (2010) (“An out-of-state lawyer, not admitted to practice in Arizona but living in Arizona, may not practice law limited to the law of jurisdictions in which he is licensed.”);

Arizona State Bar v. Arizona Land Title &  Trust Co., 366 P.2d 1 (Ariz. 1961) (preparation of legal documents for another constitutes practice of law, regardless of compensation).

Hackin v. State, 427 P.2d 910 (Ariz. 1967) (nonlawyer’s conviction under criminal statute for unauthorized practice did not violate his free speech rights);

In re Fleischman, 933 P.2d 563 (Ariz. 1997) (judge who negotiated contract on behalf of corporation was found to have been practicing law in violation of judicial code and state constitution)  

In re Strizic, No. PDJ-2013-9014, (Ariz. P.D.J. Apr. 10, 2013) (lawyer not licensed in jurisdiction violated rule “by operating as ‘The Tax Edge’ and using the designations ‘J.D.’ and ‘LLM”DDD’).

State v. Lang, 323 P.3d 740, (Ariz. Ct. App. 2014) (lawyer admitted to practice before tribal court but not Arizona Supreme Court engaged in unauthorized practice of law by maintaining office outside reservation and holding self out as attorney in engagement agreements, letterhead, and other advertising without advising potential clients that he was not admitted to practice in Arizona)

United States v. Stepard, 876 F. Supp. 214 (D. Ariz. 1994)

Other Definition:

RULES OF THE SUPREME COURT OF ARIZONA – RULE 31 – REGULATION OF THE PRACTICE OF LAW

(a) Supreme Court Jurisdiction Over the Practice of Law

1.Jurisdiction. Any person or entity engaged in the practice of law or unauthorized practice of law in this state, as defined by these rules, is subject to this court’s jurisdiction.

2.Definition: Practice of Law. The “practice of law” means providing legal

advice or services to or for another by:

(A)Preparing any document in any medium intended to affect or secure legal rights for a specific person or entity;

(B)Preparing or expressing legal opinions;

(C)Representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitrations and mediations;

(D)Preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity; or

(E)Negotiating legal rights or responsibilities for a specific person or entity.

3.Definition: Unauthorized Practice of Law. “Unauthorized practice of law” includes but is not limited to:

(A)Engaging in the practice of law by persons or entities not authorized to practice pursuant to paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 33(d); or

(B)Using the designations “lawyer,” “attorney at law,” “counselor at law,” “law,” “law office,” “JD,” “Esq.,” or other equivalent words by any person or entity who is not authorized to practice law in this state pursuant to paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 33(d), the use of which is reasonably likely to induce others to believe that the person or entity is authorized to engage in the practice of law in this state.

4. Definition of Paralegal/Legal Assistant. A “legal assistant/paralegal” is a person qualified by education and training who performs substantive legal work, which requires a sufficient knowledge and expertise of legal concepts and procedures, who is supervised by an active member of the State Bar of Arizona and for whom an active member of the state bar is responsible, unless otherwise authorized by Supreme Court Rule.

5. Definition of Mediator. “Mediator” means an impartial individual who is appointed by a court or government entity or engaged by disputants through written agreement, signed by all disputants, to mediate a dispute.

(b) Authority to Practice. Except as hereinafter provided in section (c), no person shall practice law in this state or hold himself out as one who may practice law in this state unless he is an active member of the state bar, and no member shall practice law in this state or hold himself out as one who may practice law in this state, while suspended, disbarred, or on disability inactive status.

(c) Exceptions. Notwithstanding the provisions of section (b):

1. In any proceeding before the Department of Economic Security, including a hearing officer, an Appeal Tribunal or the Appeals Board, an individual party (either claimant or opposing party) may represent himself or be represented by a duly authorized agent who is not charging a fee for the representation; an employer, including a corporate employer, may represent itself through an officer or employee; or a duly authorized agent who is charging a fee may represent any party, providing that an attorney authorized to practice law in the State of Arizona shall be responsible for and supervise such agent.

2. An employee may represent himself or designate a representative, not necessarily an attorney, before any board hearing or any quasi-judicial hearing dealing with personnel matters, providing that no fee may be charged for any services rendered in connection with such hearing by any such designated representative not an attorney admitted to practice.

3. An officer of a corporation who is not an active member of the state bar may represent the corporation before a justice court or police court, provided that: the corporation has specifically authorized such officer to represent it before such courts; such representation is not the officer’s primary duty to the corporation, but secondary or incidental to other duties relating to the management or operation of the corporation; and the corporation was an original party to or a first assignee of a conditional sales contract, conveyance, transaction or occurrence which gave rise to the cause of action in such court, and the assignment was not made for a collection purpose.

4. A person who is not an active member of the State Bar may represent a party in small claims procedures in the Arizona Tax Court, as provided in Title 12, Chapter 1, Article 4 of the Arizona Revised Statutes.

5. In any proceeding in matters under Title 23, Chapter 2, Article 10 of the Arizona Revised Statutes, before any administrative law judge of the Industrial Commission of Arizona or review board of the Arizona Division of Occupational Safety and Health or any successor agency, a corporate employer may be represented by an officer or other duly authorized agent of the corporation who is not charging a fee for the representation.

6. An ambulance service may be represented by a corporate officer or employee who has been specifically authorized by the ambulance service to represent it in an administrative hearing or rehearing before the Arizona Department of Health Services as provided in Title 36, Chapter 21.1, Article 2 of the Arizona Revised Statutes.

7. A person who is not an active member of the state bar may represent a corporation in small claims procedures, so long as such person is a full-time officer or authorized fulltime employee of the corporation who is not charging a fee for the representation.

8. In any administrative appeal proceeding of the Department of Health Services, for behavioral health services, pursuant to A.R.S. § 36-3413 (effective July 1, 1995), a party may represent himself or be represented by a duly authorized agent who is not charging a fee for the representation.

9. An officer or employee of a corporation or unincorporated association who is not an active member of the State Bar may represent the corporation or association before the superior court (including proceedings before the master appointed according to A.R.S. § 45-255) in the general stream adjudication proceedings conducted under Arizona Revised Statutes Title 45, Chapter 1, Article 9, provided that: the corporation or association has specifically authorized such officer or employee to represent it in this adjudication; such representation is not the officer’s or employee’s primary duty to the corporation but secondary or incidental to other duties related to the management or operation of the corporation or association; and the officer or employee is not receiving separate or additional compensation (other than reimbursement for costs) for such representation. Notwithstanding the foregoing provision, the court may require the substitution of counsel whenever it determines that lay representation is interfering with the orderly progress of the litigation or imposing undue burdens on the other litigants. In addition, the court may assess an appropriate sanction against any party or attorney who has engaged in unreasonable, groundless, abusive or obstructionist conduct.

10. An officer or full- time, permanent employee of a corporation who is not an active member of the state bar may represent the corporation before the Arizona department of environmental quality in an administrative proceeding authorized under Arizona Revised Statutes, Title 49, provided that: the corporation has specifically authorized such officer or employee to represent it in the particular administrative hearing; such representation is not the officer’s or employee’s primary duty to the corporation but secondary or incidental to other duties related to the management or operation of the corporation; the officer or employee is not receiving separate or additional compensation (other than reimbursement for costs) for such representation; and the corporation has been provided with a timely and appropriate written general warning relating to the potential effects of the proceeding on the corporation’s and its owners’ legal rights.

11. Unless otherwise specifically provided for in this rule, in proceedings before the Office of Administrative Hearings, a legal entity may be represented by a full-time officer, partner, member or manager of a limited liability company, or employee, provided that: the legal entity has specifically authorized such person to represent it in the particular matter; such representation is not the person’s primary duty to the legal entity, but secondary or incidental to other duties relating to the management or operation of the legal entity; and the person is not receiving separate or additional compensation (other than reimbursement for costs) for such representation.

12. In any administrative appeal proceeding relating to the Arizona Health Care Cost Containment System, an individual may appear on his or her own behalf or be represented by a duly authorized agent who is not charging a fee for the representation.

13. In any administrative proceeding before the Arizona Department of Revenue or before the Office of Administrative Hearings relating to the Arizona Department of Revenue, a taxpayer may be represented by (1) a certified public accountant, (2) a federally authorized tax practitioner, as that term is defined in A.R.S. § 42-2069(D)(1), or (3) in matters in which the dispute, including tax, interest and penalties, is less than $5,000.00 (five thousand dollars), any duly appointed representative. A legal entity, including the Department, may be represented by a full-time officer, partner, member or manager of a limited liability company, or employee, provided that: the legal entity has specifically authorized such person to represent it in the particular matter; such representation is not the person’s primary duty to the legal entity, but secondary or incidental to other duties relating to the management or operation of the legal entity; and the person is not receiving separate or additional compensation (other than reimbursement for costs) for such representation.

14. If the amount in any single dispute before the State Board of Tax Appeals is less than twenty-five thousand dollars, a taxpayer may be represented in that dispute before the board by a certified public accountant or by a federally authorized tax practitioner, as that term is defined in A.R.S. § 42-2069(D)(1)..

15.Nothing in this rule shall affect the ability of nonlawyer assistants to act under the supervision of a lawyer in compliance with Rule 5.3 of the rules of professional conduct.

16.Nothing in these rules shall prohibit the supreme court, court of appeals, or superior courts in this state from creating and distributing form documents for use in Arizona courts.

17.Nothing in these rules shall prohibit the preparation of documents incidental to a regular course of business when the documents are for the use of the business and not made available to third parties.

18.Nothing in these rules shall prohibit the preparation of tax returns.

19. Nothing in these rules shall affect the rights granted in the Arizona or United States Constitutions.

20. Nothing in these rules shall prohibit an officer or employee of a governmental entity from performing the duties of his or her office or carrying out the regular course of business of the governmental entity.

21. Nothing in these rules shall prohibit a certified document preparer from performing services in compliance with Arizona Code of Judicial Administration, Part 7, Chapter 2, Section 7-208.

ABA Rule 5.7 (Law Related Services)

ER 5.7.     Responsibilities Regarding Law-Related Services

(a) A lawyer may provide, to clients and to others, law-related services, as defined in paragraph

(b), either:

(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or

(2) by a separate entity which is controlled by the lawyer individually or with others.

Where the law-related services are provided by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients, the lawyer shall be subject to the provisions of the Rules of Professional Conduct in the course of providing such services.  In circumstances in which law-related services are provided by a separate entity controlled by the lawyer individually or with others, the lawyer shall not be subject to the Rules of Professional Conduct, in the course of providing such services, only if the lawyer takes reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not apply.

Relevant Comments

[1] When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems.  Principal among these is the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship.  The recipient of the law-related services may expect, for example, that the protection of client confidences, prohibitions against representation of persons with conflict interests, and obligations of a lawyer to maintain professional independence apply to the provision of law-related services when that may not be the case.

[2] ER 5.7 applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related services are performed.  The Rule identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of law-related services is subject to those Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the provision of legal services.  See, e.g., ER 8.4.

[3] When law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer’s provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in paragraph (a)(1).

[4] Law-related services also may be provided through an entity that is distinct from that through which the lawyer provides legal services.  If the lawyer individually or with others has control of such an entity’s operations, the Rule requires the lawyer to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply.  A lawyer’s control of an entity extends to the ability to direct its operation. Whether a lawyer has such control will depend upon the circumstances of the particular case.

[5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with ER 1.8(a).

[6] In taking the reasonable measures referred to in paragraph (a) to assure that a person using law-related services understands the practical effect or significance of the inapplicability of the Rules of Professional Conduct, the lawyer should communicate to the person receiving the law-related services, in a manner sufficient to assure that the person understands the significance of the fact, that the relationship of the person to the business entity will not be a client-lawyer relationship.  The communication should be made before entering into an agreement for provision of or providing law-related services, and preferably should be in writing.

[7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding.  For instance, a sophisticated user of law-related services, such as a publicly held corporation, may require a lesser explanation than someone unaccustomed to making distinctions between legal services and law-related services, such as an individual seeking tax advice from a lawyer-accountant or investigative services in connection with a lawsuit.

[8] Regardless of the sophistication of potential recipients of law-related services, a lawyer should take special care to keep separate the provision of law-related and legal services in order to minimize the risk that the recipient will assume that the law-related services are legal services.  The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. Under some circumstances the legal and law-related services may be so closely entwined that they cannot be distinguished from each other, and the requirement of disclosure and consultation imposed by paragraph (a) of the Rule cannot be met.  In such a case a lawyer will be responsible for assuring that both the lawyer’s conduct and, to the extent required by ER 5.3, that of nonlawyer employees in the distinct entity which the lawyer controls complies in all respects with the Rules of Professional Conduct.

[9] A broad range of economic and other interests of clients may be served by lawyers engaging in the delivery of law-related services.  Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.

[10] When a lawyer is obliged to accord the recipients of such services the protections of those Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the proscriptions of the Rules addressing conflict of interest (ERs 1.7 through 1.11, especially ERs 1.7(a)(2) and 1.8(a), (b) and (f)), and to scrupulously adhere to the requirements of ER 1.6 relating to disclosure of confidential information.  The promotion of the law-related services must also in all respects comply with ERs 7.1 through 7.3, dealing with advertising and solicitation. In that regard, lawyers should take special care to identify the obligations that may be imposed as a result of a jurisdiction’s decisional law.

[11] When the full protections of all of the Rules of Professional Conduct do not apply to the provision of law-related services, principles of law external to the Rules, for example, the law of principal and agent, govern the legal duties owed to those receiving the services.  Those other legal principles may establish a different degree of protection for the recipient with respect to confidentiality of information, conflicts of interest and permissible business relationships with clients. See also ER 8.4.

[12] Variations in language of this Rule from ABA Model Rule 5.7 as adopted in 2002 are not intended to imply a difference in substance.

Modified by:

Ariz. Ethics Op. 05-01 (2005) (lawyer subject to ethics rules when providing law-related services under circumstances indistinguishable from provision of legal services, even if lawyer provides no legal services to recipient of law-related services) aba

Ariz. Ethics Op. 05-01 (2005) (written disclosure that protections of attorney-client relationship do not apply, while “prudent,” may not always suffice);

Ariz. Ethics Op. 05-01 (2005) (lawyer referring current clients to lawyer’s separate investment advisory business must meet “heavy burden” of complying with Rules 1.7 and 1.8; if business customer is former client, lawyer must comply with Rule 1.9’s obligations regarding disclosure and adverse use of information relating to the former representation)

ABA Rule 6.5 (Court annexed/Non-profit limited scope)

Same as MR

Relevant Comments:

[1] Legal service organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services – such as advice or the completion of legal forms – that will assist persons to address their legal problems without further representation by a lawyer.  In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.  See, e.g., ERs 1.7, 1.9 and 1.10.

[2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation.  See ER 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel.  Except as provided in this Rule, the Rules of Professional Conduct, including ERs 1.6 and 1.9(c), are applicable to the limited representation.

[3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with ERs 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with ER 1.10 only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by ERs 1.7 or 1.9(a) in the matter.

[4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with the other matters being handled by the lawyer’s firm,  paragraph (b) provides that ER 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with ER 1.10 when the lawyer knows that the lawyer’s firm is disqualified by ERs 1.7 or 1.9(a).  By virtue of paragraph (b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.

[5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, ERs 1.5, 1.7, 1.9(a) and 1.10 become applicable.

ABA Rule 7.2(b) (Lawyer referral)

ER 7.2. Advertising


(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may:

(1) pay the reasonable costs of advertisements or communications permitted by this Rule:

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service, which may include, in addition to any membership fee, a fee calculated as a percentage of legal fees earned by the lawyer to whom the service or organization has referred a matter, provided that any such percentage fee shall not exceed ten percent, and shall be used only to help defray the reasonable operating expenses of the service or organization and to fund public service activities, including the delivery of pro bono legal services. The fees paid by a client referred by such service shall not exceed the total charges that the client would have paid had no such service been involved. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; and

(3) pay for a law practice in accordance with ER 1.17.

Relevant Comments:

[5] Except as permitted under paragraphs (b)(1)–(b)(3), lawyers are not permitted to pay others for recommending the lawyer’s services or channeling professional work in a manner that violates ER 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this ER, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees,  Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator is consistent with ERs 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with ER 7.1 (communications concerning a lawyer’s services). To comply with ER 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. Giving or receiving a de minimis gift that is not a quid pro quo for referring a particular client is permissible. See also ER 5.3  (duties of lawyers and law firms with respect to the conduct of nonlawyers); ER 8.4 (duty to avoid violating the ERs through the actions of another).

[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. Published and electronic group advertising and directories are not lawyer referral services, but participation in such listings is governed by ERs 7.1 and 7.4. A lawyer referral service, on the other hand, is any organization in which a person or entity receives requests for lawyer services, and allocates such requests to a particular lawyer or lawyers or that holds itself out to the public as a lawyer referral service. Such referral services are understood by the public to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this ER only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority, such as the State Bar of Arizona, as affording adequate protections for the public.

[7] The reasonable operating expenses of a legal service plan or lawyer referral service include payment of the actual expenses of operating, conducting, promoting and developing the service, including expenditures for capital purposes for the service, as determined on a reasonable accounting basis and with provision for reasonable reserves. Public service activities of a legal service plan or lawyer referral service include the following: (a) furnishing or providing funding for legal services to persons and entities financially unable to pay for all or part of such services; (b) developing and implementing programs to educate members of the public with respect to the law, the judicial system, the legal profession, or the need, manner of obtaining, and availability of legal services; and (c) creating and administering programs to improve the administration of justice or aid in relations between the Bar and the public.

[8] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. See ER 5.3. Legal service plans and lawyer referral services may communicate with the public, but such communication must be in conformity with these ERs. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate ER 7.3.

Ariz. Ethics Op. 2002-01 (2002) (lawyer may give de minimis gift after referral as professional courtesy if lawyer’s independent judgment not affected

Ariz. Ethics Op. 91-04 (1991) (lawyer may participate in networking group whose members communicate availability of services if membership fee not based upon business generated, referring prospective clients not sole purpose of group, and lawyer does not accept referrals from members in exchange for referring clients to other members)

Ariz. Ethics Op. 10-01 (2010) (not-forprofit organization that refers cases to participating lawyers may receive percentage of “court-ordered” fees in referred cases as part of its usual charge for lawyers’ participation)

Ariz. Ethics Op. 11-02 (2011) (lawyer may participate in internet advertising website whereby lawyer pays for exclusive rights to leads generated within geographic area),

Ariz. Ethics Op. 13-01 (2013) (discouraging lawyers from using group coupons whereby potential client pays coupon price directly to marketer)

Cloud Computing

Opinion 09-04 https://www.azbar.org/Ethics/EthicsOpinions/ViewEthicsOpinion?id=704

Reasonable Care standard

Specific recommendations

  • “Reasonable security precautions,” including password protection, encryption, etc.
  • Develop or consult someone with competence in online computer security.
  • Periodically review security measures.

Technology Competency
   

Comment to Rule 1.1

    Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.