Brown & Little, P.L.C. » Ethics » Unauthorized Practice

Unauthorized Practice

So there’s this lawyer named Rachel Rodgers. In June, Scott Greenfield called her out on a few things here. Earlier this week, she wrote something entitled “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” Brian Tannebaum quickly took her to task.

I normally stay out of these things, but this is close to home. You see, Ms. Rodgers lists a Phoenix, Arizona address on her website. She offers services that look like legal services. Ms. Rodgers is not a licensed Arizona attorney. I checked. She never explicitly claims to be licensed in Arizona, but she also never offers any kind of disclaimer clearly explaining that she isn’t licensed here. That wouldn’t matter anyway, as I’ll explain in a second. The of-counsel lawyer listed on her website, Donna Seyle, is not a licensed Arizona attorney either. I checked that too.

Rule 31 of the Rules of the Supreme Court of Arizona governs the regulation of the practice of law in Arizona. It gives the court jurisdiction over Ms. Rodgers and Ms. Seyle, and it defines the unathorized practice of law. ER 5.5 of the Arizona Rules of Professional Conduct also governs the unauthorized practice of law. Specifically, ER 5.5(b) explains that “[a] lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.”

As explicit as the rules may be, the ethical issues involved in what Ms Rodgers appears to be doing are actually even more clear-cut than it appears from the rules alone. The State Bar’s UPL (unauthorized practice of law) Advisory Committee has written an advisory opinion pretty much exactly on point. They have posted it online here. It is the first opinion appearing on the State Bar’s webpage discussing unauthorized practice. In it, the committee considered whether an out-of-state lawyer admitted to practice law in states other than Arizona could relocate to Arizona and practice law of the states in which he is admitted while physically present in Arizona. Here’s the committee’s conclusion:

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. The out-of-state lawyer may not perform the practice of law in an Arizona office of record, either the office of the out-of-state lawyer or an admitted Arizona attorney.

The attorney in the opinion even wanted to clearly disclose the jurisdictional limitations of his practice on his letterhead and business cards, and he was not going to solicit or advertise to Arizona residents. Those are limits Ms. Rodgers does not seem to have imposed on her practice. The committee still shot him down. I don’t know if Ms. Rodgers has some clever argument to get around Arizona’s ethics rules and the advisory opinion directly on point, but I’m going to offer a little advice to anyone else contemplating the same kind of thing.

Only maintaining an Arizona address makes a lawyer look like an Arizona lawyer. Having a website that doesn’t plainly state that a lawyer is not licensed in Arizona makes it worse. The State Bar of Arizona does not mess around. They put a form on their site for reporting unauthorized practice of law. We have an ethics rule, ER 8.3, that requires reporting by a member of the bar when that lawyer knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

I probably wouldn’t be writing about this if it weren’t for the things Ms. Rodgers wrote in her little tirade. Take this, for instance:

I have been accused by ‘more experienced’ colleagues’ of being an unethical attorney simply because I practice law online or because I practice law in a state where I do not live or because I market my practice online. Apparently, many experienced attorneys cannot understand how I could possibly have a non-traditional law practice and still be ethical. Well, too bad! Too bad that you do not understand. Too bad that you are so rigid in your ideas of how law should be practiced that you criticize and attempt to ostracize any attorney trying something new instead of asking yourself, ‘what could I maybe learn from her?’ And too bad that you won’t pull a young lawyer aside and point out areas you think present an ethical hazard but instead choose to publicly discourage and belittle them. And too bad that you are quick to judge and react apparently before you have read the ethics rules and requirements in the states where I am barred. I have. And I have applied them to my practice. Thank you very much.

In no uncertain terms, she is admitting to practicing law in a state where she does not live. Because I’m pretty sure from her website that that state happens to be Arizona, I think she may have a big problem on her hands. Based on the rules and the opinion I mention above, I am fairly confident that her particular type of non-traditional law practice is likely not ethical here. I’m happy that she read the ethics rules and requirements in the state where she is barred, but she needed to review Arizona’s rules as well.

My intention isn’t to publicly discourage or belittle anyone, but to provide a little dose of reality. Ms. Rodgers should reassess her conclusion about whether experienced lawyers should quit scaring young lawyers about ethics:

Instead, why not give tips on how to look up and apply ethics rules and/or make young lawyers aware of the top ethical pitfalls that lawyers face? And young lawyers, my message is do not be afraid. Do not let the word “ethics” prevent you from establishing a law practice, even one that is cutting edge. Instead, do your research and apply the rules to your practice. And when in doubt, call your state’s ethics hotline.

My conclusion is very different. In my opinion, lawyers should be afraid of ethics. Attorneys get disbarred all the time, and the State Bar of Arizona takes attorney discipline very seriously. No lawyer, especially a young lawyer, is going to see every ethical pitfall. Whatever it is that you want to do may be the next best thing in lawyer marketing since sliced bread, but there’s no rule insulating from attorney discipline those lawyers who engage in innovative but ethically-prohibited business practices. The truth is that ethics rules will prevent plenty of lawyers from opening up certain types of “cutting edge” practices, just as the criminal laws ultimately stop many of my clients from operating their “cutting edge” businesses.

I am absolutely astonished that Ms. Rodgers would publish an article arguing young lawyers shouldn’t fear ethics rules when in that very article she admits to things that suggest her own law practice is prohibited by the ethics rules of the state in which she’s chosen to practice. It’s even more outrageous that she seemingly boasts about the research abilities of other young lawyers and the fact she did ethics research on her own.

I’m not using ethics as a weapon. I honestly don’t care what Ms. Rodgers does. The bar, on the other hand, probably does. Although young lawyers may be able to ignore crotchety old lawyers hurting their feelings about the ethics of doing things they feel are perfectly okay, they’ll have a lot tougher time with that when it’s the bar that comes knocking. Our supreme court is more than willing to use ethics as a weapon against lawyers of any age when it feels the circumstances require it.

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36 Responses to "Unauthorized Practice"

  1. […] Rachel have some problems with unauthorized practice of law a little while […]

  2. Phoenix criminal attorney says:

    She should take the bar exam.

  3. […] career has been somewhat controversial. For instance, Tempe Criminal Defense Lawyer Matt Brown wrote an article questioning her use of a virtual office in Arizona although she is only licensed to practice in New […]

  4. MarketLaw says:

    I agree with CommonSensical, she should just take the bar and fix the problem. I mean real lawyers have enough problems to deal with without fake ones, I mean marketing for law firms and attorney adverting alone is enough, just to say one thing..not to mention cases! Come one, woman..sheesh.

  5. CommonSensical says:

    Why doesn’t she just take the Arizona Bar and foreclose any issue. Am I missing something?!

    ps I get that she liked the positive arbitrage of charging NYC legal fees whilst enjoying a no physical office, much cheap cost of living.

    That said, she comes off as very snide, and disrespectful in her online ‘back-and-forth’ with other attorneys who are raising fair and reasonable ethical concerns relative to her online practice (i googled ethics and her name after i saw her blog).

  6. OB1 says:

    Just let the young lawyer be. Why are you so disgusted about this? Are you jealous? The Bar does not really care until an actual client complaints.
    Perhaps this is the new method of practicing law? Are we seeing the future?
    What happened to chasing the bad lawyers? Lawyers that actually make money at the cost of literally screwing their clients. The Bar can’t really police all of them. Are you ready to cast the first stone? Just remember what, where, when we did something that look, were close to committing malpractice, and perhaps was unethical :-).

  7. Skip says:

    I spoke with the State Bar of Arizona before Rachel published her rant. They seemed well aware of what is going on. Although I can’t speak for the Bar or explain the letter, I suspect that the investigation is ongoing. The rules are clear. If she is allowed to continue “practicing” law in Arizona, I will be surprised and disappointed. And Kris is right: This is not an issue of old vs. young, although in this case, it may be an issue of mature vs. immature.

  8. […] Brown talks about the Arizona ethical issues he thinks might face Rodgers’s business model in Unauthorized Practice; Tannebaum is back an hour later with Around The Ethicsphere: Reproductive Law Classes at SPU […]

  9. Deborah Reumann says:

    Matt–

    You state that “attorneys get disbarred all the time”….say what? If lawyers (and judges) were disciplined more appropriately, more efficiently, and more fairly (ever noticed the number of solo practitioners who’re disciplined as opposed to atty’s from large firms) there would be far fewer lawyer’s jokes because people would begin to feel as if their complaints just might be taken seriously (adopting HALT’s “Lawyer Discipline Best Practices,” – http://www.halt.org/reform_projects/lawyer_accountability/petition.php – could work wonders at restoring the public’s faith in attorneys IMHO).

    I’d love to see a post that addressed the highlighted portion of Ms. Rodger’s piece, as it’s there that she lists some of the practices that lawyers regularly engage in that give them a bad name. I’m not a lawyer but I’ve been doing forensic work for some time now and, while I agree with the Irreverent Lawyer that “knowing what you don’t know” is vital and that, perhaps, that’s not something anyone can really grasp until they’ve been knocked around a bit, Rodgers seems to be pretty concerned about doing the right thing and how to navigate the gray areas in the law with the help of senior attorneys who are respectful of the choices she’s made.

    Thanks for letting me get this beef about disciplinary boards off my chest…

    Deborah

    BTW–the head of my state – which shall remain unnamed – disciplinary board has the unfortunate surname of Slease. Poor man.

    1. Deborah Reumann says:

      Okay, I just read Scott Greenfield’s blog on this subject – “What If Ethics Came First?” (http://blog.simplejustice.us/) and will ask y’all to ignore the last paragraph of my comment above because a) I’m new to the law blogosphere (am procrastinating while deciding whether to further my studies in Mental Disability Law) and am beginning to realize how well (and humorously, which is what makes them so enjoyable) my concerns have been addressed in various of these blogs; and 2) I don’t want to be saying that “senior attorneys” should respect a young lawyer’s decision to advertise services in a state in which she’s not licensed which it appears that, no evidence having been produced to the contrary, Ms. Rodgers may be doing.

      The confusion at the AZ bar over Ms. Rodger’s status, however, simply reinforces my claim that state bars don’t do a very good job of monitoring attorneys; and that, if they did a better job, those of you who are dealing from the top of the deck would have an easier time of it.

      All best and I’ll get back to pondering my future….Deborah

  10. Ken says:

    Plus, in my experience, state bars are not exactly a model of consistency. It would not surprise me if a state bar ignored, or was ignorant of, one of its own committee’s ethics opinions.

    Notwithstanding that, one could probably rely on such a letter as a defense against discipline — if not as a defense against some sort of cease-and-desist direction for future action.

    I don’t think I would rely on a two-paragraph letter from a bar flunky that directly contradicted an exactly on-point ethics opinion, though.

    1. Matt Brown says:

      I also hear there is at least one very recent attorney admission case from our supreme court that uses the same analysis as the committee does (and I do). In it, I think the court denied an out-of-state lawyer who did what she did admission by motion because it felt the lawyer had been engaging in UPL. Those cases aren’t online, unfortunately.

      I can’t imagine she forged the letter, so my guess is that an intake attorney unfamiliar with the rules improperly closed the case. Whether that was the current case the bar mentioned on the phone or not, I have no clue. Regardless, I think that by posting that rant and now the letter, it’s going to reopen everything for her. She may be on track to out-Rakofsky Rakofsky.

      1. Skip says:

        I can’t imagine she forged the letter either, but it does appear to have been typed in a hurry. The salutation suggests that the letter may have been intended to be received posthumously by the host of a long-running children’s TV show.

    2. Interesting question. In Florida, we recently changed our rules to say that an ethics opinion (not the closing of a complaint) can be used by the lawyer in defense of any allegations of a rule violation. Conversely, the rule in Florida has always been that an ethics opinion cannot be used by the Bar as a per-se determination of a violation. This is of course because ethics opinions are issued on particular facts.

      My questions are these:

      What did she tell the Bar, exactly, and what is actually going on…

      This complaint was closed after a “move along, nothing to see here” discussion over the phone.

  11. Bob Smith says:

    This blog and these accusations are a joke.

    See this letter from the AZ Bar – http://rachelrodgerslaw.com/wp-content/uploads/2011/08/Az-Bar-Clearance-Letter.pdf

    That’s what happens when you speak before reading the rules/examining the evidence.

    Boom. Lawyered.

    1. Matt Brown says:

      After seeing this, I just called the bar. They seem to think there is still an open file on her and that their investigation is ongoing. They are looking into the letter.

    2. Ken says:

      It’s not clear to be how the letter reconciles with the Advisory Opinion quoted above. Is it clear to you?

      1. Matt Brown says:

        Tough to say. The guy I spoke with at the bar didn’t think they’d sent her anything like this with regard to her current open case. It’s impossible to know what the bar’s analysis means without seeing the charges.

  12. Ken says:

    I’m worried that she’s going to go full Rakofsky now.

    You should never go full Rakofsky.

    1. Matt Brown says:

      I think you’re right.

  13. I brought this post to her attention and she claims that “The State Bar of Arizona has approved me to practice law just as I am, in writing.”

    However, when I asked her to share said writing, she brushed me off.

    If someone called my behavior unethical, and I had a letter from the state Bar saying what I was doing was kosher, I’d pin that letter to my tie and walk around with it – or at least put it up on my website.

    http://solopracticeuniversity.com/2011/08/09/ethics-should-not-be-used-as-a-weapon-against-young-lawyers/?utm_source=rss&utm_medium=rss&utm_campaign=ethics-should-not-be-used-as-a-weapon-against-young-lawyers#comment-14582

    1. Matt Brown says:

      Me too. If she gives you proof, please forward it…

  14. Mark Bennett says:

    Your second-level comments show up black on dark grey. Very difficult to read.

    1. Matt Brown says:

      Noticed that. I can’t seem to fix it, just sent an email to my web guy.

  15. […] in that jurisdiction.” On that score, see Matt Brown’s comments on her alleged “Unauthorized Practice” at Tempe Criminal […]

  16. […] been said about Rachel Rodgers’ rant about older attor­neys sup­pos­edly using ethics as […]

  17. shg says:

    One word of caution about confusing the code of conduct and ethics. The former provides the basis for disciplinary action, whereas ethics is a far broader concern. That we can get away with something because it won’t result in discipline doesn’t make it ethical, and that’s a distinction that’s often missed.

    Was Rodger’s website likely to mislead people into believing that she was licensed to practice in Arizona? Even if there was no rule relating to it, misleading and thereby deceiving people is unethical. Not merely because the rules say so, but because deceiving people is wrong.

    When we limit our vision of ethics to the ERs and DRs, we focus only on the narrow issue of what can get is in trouble with the disciplinary board/committee and ignore the broader issue of honesty and integrity.

  18. Chris says:

    Matt,
    IANAL, but isn’t Arizona a right to work state?

    How can a board, guild, union compel compliance?

    Seems to me she is hooking without a “license”. (I just called attorney’s prostitutes.)

    1. Matt Brown says:

      When it comes to law (or medicine or a bunch of other things), the powers that be have an enormous amount of control over who does what. Right to work goes right out the window.

      1. Chris says:

        I understand your point. I would suggest most licensing schemes exist for the protection of entrenched market participants instead of the general public.

        Practicing law without a license, practicing medicine without a license, collecting garbage without a license, working in a restaurant without a license, cutting hair without a license.

        The SC had a recent ruling about casket sales in Louisiana that made this point I believe.

      2. Marc says:

        But who is the State Bar of Arizona protecting in this case? Not Arizona residents, because she isn’t serving Arizona residents. Not Arizona licensed lawyers, because she doesn’t compete with them.

        It seems to me that there is no compelling legitimate State interest in regulating her behavior in Arizona. If anyone has standing, then it should be one of the bars where she has a license (or her Of Counsel has a license) and whose citizens she is allegedly serving. I know this is a losing argument in general, but I really wonder if this is one of those narrow cases where the government might lose on a rational basis test. And that is the essential ruling in St. Joseph Abbey v Castille, 10-cv-02717-SRD-ALC (LA Eastern District, July 21), the Louisiana Casket case cited by someone below. However, I doubt this will survive the 5th circuit.

        1. Matt Brown says:

          I suspect it’s a bit of circular logic. The bar is protecting the people who read her article and choose to do the same thing. She’s offering well-publicized advice that will result in the lawyer who follow it being exposed to bar discipline. Also, the fact her site doesn’t tell prospective AZ clients (and clients in 47 other states) she can’t represent them probably makes a pretty compelling state-interest argument too.

          1. Marc says:

            Because she markets to other lawyers, that might just be enough to survive on a rational basis test, but honestly, that is a really weak justification for the Bar. Why the Bar would be in the business of protecting other lawyers, who should be professionals and make their own evaluation of the ethics rules, escapes me. But I shouldn’t be surprised – I practice license defense for healthcare professionals and the regulatory agencies sometimes seem to be in the business of taking care of employer/employee issues with an axe rather than a scalpel

            I hadn’t evaluated her website since this business model isn’t for me anyway, so I didn’t know how she was presenting herself via her website. But I find this rule a bit odd for the reasons I noted – I personally wouldn’t have a problem with this business model if everything is disclosed appropriately and the client doesn’t care. But the fact that she may not have an appropriate disclaimer stating where she is licensed and can practice is a serious problem which needs to be changed because it does cause the potential confusion for clients.

            But what would you say about a lawyer with the same business model that does not market to other lawyers and whose website has the appropriate disclaimers (an pure example that still does run afoul of Arizona ER 5.5)? I don’t think there is a compelling state interest because there is no injury that is within the purview of the Arizona Bar.

  19. Andrew Becke says:

    So Matt, based on ER 8.3, shouldn’t we be filling out one of those “forms”?

    1. Matt Brown says:

      Adrian and I were actually just discussing that. No answer yet, but we’ll keep you posted.

  20. kris says:

    she is a moron. And to top it off, what’s up with the exclamation points!?

    Maybe someone who gives a damn at the AZ Bar will remind her there is no “Young Lawyer” exemption to the rules.

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