Patricia A. Sallen

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“The Love Letter,” Jean Honoré Fragonard (French, Grasse 1732–1806 Paris); The Metropolitan Museum of Art, New York
Nope. And that’s just one reason why a proposed ethics opinion about ER 4.2 is wrong.(If, after reading this and the relevant documents, you agree, the comment period is open until Monday, August 30, 2021, and you can easily comment just by sending an email. Here’s the link.)The Arizona Supreme Court’s Attorney Ethics Advisory Committee Ethics has floated for public comment a draft opinion that concludes that if a lawyer sends opposing counsel an email and copies their client on that email,
Continue Reading Is an email materially different from a paper letter?

The Arizona Supreme Court has rejected the Attorney Ethics Advisory Committee’s attempt to upend this state’s decades-long position that surreptitious recording by lawyers is per se unethical.
The Court denied the AEAC’s proposed EO-20-0002 on April 13, directing that it not be posted or distributed.
This is the first time since the Rule 42.1, Ariz. R. Sup. Ct., procedure for issuing ethics opinions went into effect on January 1, 2019, that the Court flat-out rejected a proposed AEAC opinion. The Court once earlier directed the AEAC to revise a proposed opinion (proposed EO-19-0002, remanded to the AEAC for further work)
Continue Reading News flash: Secret recording still unethical!

The Arizona Supreme Court’s two-year-old Attorney Ethics Advisory Committee has issued, with the court’s blessing, its first four ethics opinions over the past two months. Three of the opinions deal with significant topics lawyers routinely face: client files, termination of representation, and liens. Opinion EO-19-0009 succinctly clarifies lawyers’ obligations regarding client files, effectively rendering impotent about a dozen old State Bar of Arizona advisory opinions. It also plows new ground on two important issues. Opinion EO-20-0001, which addresses terminating representation, essentially ratifies old State Bar Op. 09-02 because it includes, virtually word for word, the content of that opinion.
Continue Reading Files, liens, terminating representation among AEAC’s first (binding!) ethics opinions

Conflicts rules amplified, referral fees no longer banned, and so very much more

The Arizona Supreme Court’s recent rule changes allowing non-lawyers to have ownership interests in law firms and creating legal paraprofessionals (LPs) understandably grabbed lots of attention. Non-lawyer ownership – alternative business structures (ABS) – has especially been the bright, shiny object that gets all the oohs and aahs.
ABSs and LPs are indeed huge developments, which I previously wrote about here and here. Many Ethical Rules, notably those that deal with conflicts, confidentiality and supervision, were amended to account for non-lawyer ownership and management. To accommodate
Continue Reading Far-reaching changes to the practice of law in Arizona, part 3 of 3

Lawyers, Get Ready for “Alternative Business Structures”

For decades, only lawyers have been allowed to own law firms. Only lawyers have been able to make management decisions in firms. Only lawyers could share in legal fees resulting from specific cases.That all changes in Arizona in 2021.Beginning next year, a massive conglomerate that owns big-box retail stores, insurance companies and fast-food restaurants also could own an Arizona law firm or, at the other end of the spectrum, the non-lawyer-spouse of a sole practitioner could become the lawyer’s law partner.Get ready for alternative business structures (“ABSs”).The Supreme Court’s Task Force on the Delivery
Continue Reading Far-Reaching Changes to the Practice of Law in Arizona, Part II of III

Sometime starting next year, your opposing counsel might not be a lawyer.
And yet that person may be able to do pretty much everything you can do, such as negotiate, file motions, conduct discovery, appear in court, maybe handle appeals, but might not even have a bachelor’s degree, let alone a JD, and didn’t have to pass the bar exam.
If you haven’t already done so, this is a good time to wrap your head around the fact that in 2021, qualified non-lawyers will be able to represent clients in family law and relatively low-level civil and criminal matters.
Get
Continue Reading Lawyers, get ready for “legal paraprofessionals”

The Arizona Supreme Court recently adopted rule changes that, beginning January 1, will allow non-lawyers to have ownership interests in law firms and lawyers to pay referral fees.
  That’s really big news. And I’ll write about it. But not today.
  Instead, I want to address something the Court didn’t do but that I think is significant, albeit not big.
  Rule-change petition R-20-0022 asked the Court to adopt a rule that would require it to explain its decisions on rule-change petitions and disclose how each justice voted. I heartily supported that petition and filed a comment advocating for the Court to
Continue Reading On nonlawyer ownership, a significant denial by SCOTAZ?

All photos by Michael Ging

Archie Attorney had fond childhood memories of helping his grandparents tend to the animals on their farm. He wanted his children to have those sorts of experiences – despite living in a city – and he fantasized about filling his urban backyard with pygmy goats, miniature horses and, especially, chickens. He’d researched the municipal ordinances on keeping livestock and poultry and had already sketched out a plan for his backyard. In particular, he’d spent way too much time dreaming about how he’d use his treasured first car – a beat-up VW bug – as a
Continue Reading Coop Dreams: Is It OK to Barter Legal Services for Chickens?

As with most every other scheduled activity involving lots of people, COVID-19 is wreaking havoc with the July bar exam, that semi-annual rite of passage in which hundreds of mostly new law graduates spend hours in communal confined spaces taking written tests they hope will show that they have the required knowledge and skills to be licensed as lawyers. According to data collected by the National Conference of Bar Examiners (NCBE), about half of all U.S. states – including Arizona – will hold an in-person bar exam on July 28 and 29. Some jurisdictions will hold in-person exams in September
Continue Reading If the COVID-19 accommodations are <em#x3E;good enough</em#x3E;, then let’s re-think the bar exam

If you’re already admitted to practice in Arizona, thank your lucky stars because taking the July bar exam this year will be, like almost everything else during this pandemic, different.
Remember how stressed you were when you took the bar exam? Now add a face mask or shield, health screening, and social distancing to normal bar-exam stress and imagine that level of inner turmoil.
If Arizona’s July bar exam – which is still planned – follows recent history, more than 500 people will take it, in person, at the Phoenix Convention Center.
But that’s where normal stops this year.
Arizona
Continue Reading A bar exam with even more stress than usual

One of the rule-change petitions filed this year asks the Arizona Supreme Court to amend Rule 28, which is its own rule about rule-change petitions. R-20-0022 proposes requiring that the Court explain its actions on rule-change petitions and disclose how each justice voted. So, it’s a rule-change petition about rule-change petitions. Mauricio R. Hernandez filed the petition asking for the change “to support longstanding state policy favoring open government and an informed Arizona citizenry and to heighten accountability through augmented transparency.” [Petition at 1] The petition points to the Nevada Supreme Court as an example of a jurisdiction that does this, and
Continue Reading A rule-change petition asks the Supreme Court to disclose info about its actions on… rule-change petitions

Your new personal-injury client – the one who fired their previous lawyer without cause and then hired you – comes with baggage that the American Bar Association says you, as successor counsel, must carry.The ABA’s most recent opinion, Op. 487,  interprets the Model Rules of Professional Conduct as imposing a myriad of obligations on the successor counsel, including that successor counsel must:

  • Disclose to the client, in writing and preferably in the fee agreement, that the client’s previous lawyer has a potential claim on any recovery;
  • Discuss with the client whether the successor counsel will help the client with


Continue Reading That new personal-injury client may come with baggage you’ll have to wrangle

Your new personal-injury client – the one who fired their previous lawyer without cause and then hired you – comes with baggage that the American Bar Association says you, as successor counsel, must carry.The ABA’s most recent opinion, Op. 487,  interprets the Model Rules of Professional Conduct as imposing a myriad of obligations on the successor counsel, including that successor counsel must:

  • Disclose to the client, in writing and preferably in the fee agreement, that the client’s previous lawyer has a potential claim on any recovery;
  • Discuss with the client whether the successor counsel will help the client with


Continue Reading That new personal-injury client may come with baggage you’ll have to wrangle

A new Arizona Supreme Court rule that is far more important for Arizona’s legal profession than it may seem took effect yesterday.As a result of new Rule 42.1, Ariz. R. Sup. Ct., the Supreme Court, which by the Arizona Constitution is in charge of regulating the practice of law, will directly control another piece of the system of governing Arizona lawyers. This, after revamping the discipline system effective in 2011 in many ways, including removing the probable-cause function from State Bar of Arizona control and relocating it to a court-appointed committee that acts like the grand jury in discipline
Continue Reading New System for Issuing Formal Ethics Opinions is a Game Changer for Arizona Lawyers

A new Arizona Supreme Court rule that is far more important for Arizona’s legal profession than it may seem took effect yesterday.As a result of new Rule 42.1, Ariz. R. Sup. Ct., the Supreme Court, which by the Arizona Constitution is in charge of regulating the practice of law, will directly control another piece of the system of governing Arizona lawyers. This, after revamping the discipline system effective in 2011 in many ways, including removing the probable-cause function from State Bar of Arizona control and relocating it to a court-appointed committee that acts like the grand jury in discipline
Continue Reading New System for Issuing Formal Ethics Opinions is a Game Changer for Arizona Lawyers

A threat is leverage you could use to get what you want. Dictionary.com puts a slightly discordant, even evil ring on the word:1.    a declaration of an intention or determination to inflict punishment, injury, etc., in retaliation for, or conditionally upon, some action or course; menace: He confessed under the threat of imprisonment.2.    an indication or warning of probable trouble: The threat of a storm was in the air.3.    a person or thing that threatens. It’s easy to take an ultra-cautious – paranoid? — approach and advise that lawyers should never threaten anyone for any reason. But threats have a
Continue Reading A Primer on Threats: When the Ends Don't Justify the Means