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.