Sunday, September 9, 2012

Attorneys seek to void Arizona rules on out-of-state law licenses

The justices of the state's highest court could be in court themselves soon, defending their rules of who can practice law in Arizona.

Two out-of-state attorneys are asking U.S. District Court Judge G. Murray Snow to void Arizona Supreme Court rules which place limits on the ability of some out-of-state lawyers to practice here. They want Snow to rule that once someone is authorized to practice law in one state, that right should be transferable everywhere.

Chief Justice Rebecca Berch declined to comment on the litigation. And John Phelps, president of the State Bar of Arizona, which recommends rule changes to the high court, said his organization has not taken a formal position about the change being sought.

But Phelps suggested that the Bar is likely to take a dim view over this kind of automatic interstate licensing, if for no other reason than it would limit its ability to discipline attorneys who are guilty of unethical practices.

Arizona moved partly in that direction two years ago when it created a system of reciprocal licensing.

In essence, lawyers from states that let Arizona attorneys practice there without additional testing requirements can, in turn, practice here.

There are some requirements, like a background check and fingerprinting. Attorneys must also have actively practiced for five of the last seven years.

And there's a one-day crash course on understanding Arizona rules and laws.

But attorneys from non-reciprocity states have to take the full-blown, two-day Bar examination. That requires not only extensive preparation - particularly for those who have been out of school for some time - but also waiting to find out if there was a passing score.

The lawyers who are suing are from California and Montana, both non-reciprocity states. Also suing is the National Association for the Advancement of Multijurisdictional Practice, based in California.

Attorney Grant Savoy, representing the challengers, said there is no reason for such a blanket rule.

"An experience attorney has already proven his or her competence, and that he or she is not a threat to the public by their prior licensing and track record," he argued in his federal court papers. Savoy said the testing requirements for lawyers from non-reciprocal states "rejects the best evidence of competence, and instead relies on a testing protocol that is known to lack content validity, criterion or predictive validity."

And he pointed out that the American Bar Association has recommended that all U.S. lawyers with three years of experience should be given the same kind of consideration that Arizona now grants only to attorneys from states with reciprocity.

Phelps said the move is not surprising, given the pressure on law firms to work with clients whose business is not just multistate but also international.

"The traditional physical boundaries that used to kind of contain the legal practice by state boundaries ... are starting to kind of disappear with the advent of the Internet and the virtual practice of law," he said.

He also said the law "is becoming kind of universal," what with model laws that most states adopt.

But Phelps said that still leaves the question of whether forcing Arizona to let all lawyers from other states practice here is in the best interests of the state.

"It's fair to say that our board has consistently been concerned about using our ability to oversee and regulate the conduct of the lawyers practicing in Arizona," he said.

"The concern is protecting the public and making sure that lawyers that are dealing with Arizona clients, that we have some ability to make sure not only are they meeting basic requirements but, if they're not, that we can do something about it," Phelps continued. "The concern is that the public really has nobody to go to when they have a bad experience with a California attorney who happens to be practicing in Arizona."

The petition has gotten the attention of attorney Tim Burr who now teaches at Arizona State University.

It was Burr, then in private practice, who waged a four-year fight just to get the Supreme Court to adopt the reciprocity rules.

His concern, however, wasn't so much to help attorneys from elsewhere. Instead, Burr, who did a lot of real estate work, said Arizona's rules effectively prohibited him and others from representing clients who needed help beyond Arizona's borders.

Burr said there's really a simple answer to what the lawsuit seeks: Other states should agree to let experienced Arizona lawyers practice there. Then the door would be open here to attorneys from those states.

"Rather than be a part of the system, they're trying to attack the whole system," he said.

Burr said, though, that may be difficult when dealing with California which he said is "a different animal."

For example, he noted that the State Bar of California is supporting the bid by an illegal immigrant to be able to practice law there. Phelps finds that somewhat humorous.

"They'd rather admit an illegal alien than a U.S. citizen from Arizona," he said. "How does that work?"

And California allows attorneys to practice there even if they have graduated from a law school not accredited by the American Bar Association, something not allowed elsewhere. Phelps said some of these schools are "real marginal."

But Savoy, in his lawsuit, says all the concerns are not only overblown. They also are unconstitutional.

"(The rule) is a wall that categorically disqualifies all experienced attorneys from some states, no matter their level of experience or the subject of their expertise; while it categorically qualifies all experienced lawyers from some states," he wrote.

Savoy also argued that the rule illegally affects interstate commerce.

By Howard Fischer, Capitol Media Services

Source: The Yuma Sun


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