96-06: Lawyers Awaiting Admission; Supervision of Non Lawyers; Out of State Lawyers

This opinion provides guidelines for both lawyers who are admitted in other states while they await admission in Arizona and for the Arizona Bar members who supervise those "foreign" lawyers. The guidelines include a non-exhaustive list of what the foreign lawyers may and may not do while awaiting admission and what supervision is required by the Arizona attorneys. [ERs 5.3, 5.5, 7.5]

The inquiring attorney is admitted in Arizona. The inquiring attorney ("Lawyer A") has employed someone who is admitted in another state and is awaiting Arizona Bar exam results ("Lawyer B"). The law firm's letterhead notes next to Lawyer B's name that she is "Licensed in Illinois only". Lawyer A supervises and reviews Lawyer B's work.

May Lawyer B send out correspondence as counsel for clients, if the letterhead duly notes where she is admitted, and if Lawyer A supervises her work? Lawyer B also wants to know whether she may meet with clients/potential clients and, if so, how should she describe her status while awaiting Arizona admission.

With respect to a nonlawyer employed or retained by or associated with a lawyer:

a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct, ratifies the conduct involved; or

1)the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

2)the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

b) assist a person who is not a member off the bar in the performance of activity that constitutes the unauthorized practice of law.

a) A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1. A trade name may not be used by a lawyer in private practice.

b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

A person is an attorney in Arizona only if the person is admitted to the State Bar of Arizona. Ariz. R.S.Ct. 31(a)(3). An attorney licensed in another state, who is not licensed in Arizona, is a "nonlawyer" for purposes of the Rules of Professional Conduct. See, Peterson v. Anderson, 155 Ariz. 108, 112, 745 P.2d 166 (Ct. of App. 1987). If an attorney from another state wants to litigate a matter in Arizona, that out-of-state lawyer may be admitted by motion, solely for that one case. Ariz. R.S.Ct. 33(d). What these Supreme Court Rules, and the Rules of Professional Conduct fail to address, are: 1) what may an out-of-state lawyer do in a non-litigation context while she is awaiting Arizona Bar admission; and 2) what disclosures must she make regarding her status.

The brief answer to the questions raised above are: 1) a "foreign" lawyer may only perform those services that a nonlawyer could perform because, technically, the foreign lawyer is not a lawyer in Arizona; and 2) the foreign lawyer must disclose that she is admitted only in another jurisdiction. The disclosure about where a foreign lawyer is admitted will be addressed at the end of this opinion. The more difficult question is what legal services may a "foreign" lawyer perform and still be in compliance with the Rules of Professional Conduct.

What constitutes the practice of law in Arizona not only is a highly debated issue, but also a legal issue outside of the Ethics Committee's jurisdiction. Accordingly, the Committee will not provide a specific definition of what legal services constitute the practice of law other than to refer to the general definition in State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961). See, also Formal Arizona Op. 73-21 (June 15, 1973) (delegation to law students of tasks other than the practice of law). Basically, the Arizona Land Title case provides that the practice of law is anything that lawyers have done throughout time. This definition would seem to imply that only lawyers may draft pleadings, research, meet with clients and/or witnesses, and send correspondence on behalf of a client.

This opinion concludes, however, that all of the activities mentioned above are permissible activities for a person not admitted to the State Bar of Arizona as long as: 1) the person is supervised by a member of the Bar; and 2) the persons' status is disclosed in all written and oral communications.

In Op. 296 (December 3, 1969), the Committee was asked to consider what activities law students and others awaiting admission could perform. The Committee cited to the Arizona Land Title case and generally to the 1967 guidelines promulgated by the Committee on Examinations and Admissions for individuals pending admission. None of these citations provided any specific guidance on what legal services non-admitted individuals could perform. Similarly, in Formal Op. 73-21 the Committee was asked to consider whether law students could represent indigent clients in administrative matters. The Committee again did not provide much guidance in this opinion because there were insufficient facts to analyze what services actually would be performed by the law students. Clearly law students and other non-admitted personnel could not make court appearances on behalf of clients. The opinion went on to note that non-admitted personnel also could not do anything else that "only lawyers may do." Op. at 4, quoting ABA Formal Op. 316 (1967).

Other jurisdictions also have considered the issue of what may law students and foreign lawyers do while awaiting admission. See, e.g., N.Y. County Lawyers' Assn. Committee on Professional Ethics Op. 682 (November 11, 1990) (law students/foreign lawyers may interview witnesses, draft documents, research, answer calendar calls with no argument, and attend closings, but may not take depositions, counsel clients, appear in court, argue motions or supervise the execution of a will); Kentucky Op. KBA E-341 (November 1990) (law students may not take depositions); Bar Assn. of Nassau County, N.Y. Committee on Professional Ethics Op. 53/88 (October 2, 1988) (law students/law school graduates cannot take depositions); Bar Assn. of Nassau County, N.Y. Committee on Professional Ethics Op. 43/86 (October 21, 1986) (legal assistant may attend real estate closing if appropriate disclosures made, no legal arguments, no exercise of professional judgment required, lawyer maintains direct relationship with client, lawyer supervises, and the lawyer is ultimately responsible for the work product).[2]

The underlying premise of these opinions and Ethics Rules 5.3 and 5.5 is that a lawyer cannot delegate her professional responsibilities to a non-lawyer. The public is "better served if only lawyers are permitted to act in matters involving professional judgment." Ethical Consideration 3-5. However, these concerns are somewhat mollified when the activities will be performed by someone who is admitted in another jurisdiction. That person already is subject to the Rules of Professional Conduct, or equivalents. Accordingly, as long as the non-admitted foreign lawyer makes appropriate disclosures and is supervised by a member of the Arizona State Bar, that individual may assist Lawyer A in the functions noted above, such as drafting documents, researching, sending correspondence, and meeting with clients/witnesses. As a reminder, this opinion does not attempt to provide a legal definition for what is not the practice of law nor does it attempt to provide an exhaustive list of what law-related services may be performed by a non-lawyer under the supervision of a lawyer.

A member of the State Bar of Arizona must supervise the work performed by the foreign lawyer, in compliance with ER 5.3. Moreover, the supervising lawyer ultimately is responsible for the work performed by the foreign lawyer, including adherence to the Rules of Professional Conduct. Supervision of the foreign lawyer should include: 1) reviewing the pleadings prepared by Lawyer B and having only Lawyer A sign such pleadings; 2) reviewing any letters drafted by Lawyer B and assuring that she indicates in the letter or signature line that Lawyer B is only admitted in another jurisdiction and that the correspondence is sent on behalf of Lawyer A; and 3) Lawyer A advising clients that Lawyer B is not admitted in Arizona and that Lawyer A will be "counsel" to the clients until such time as Lawyer B is admitted in Arizona.

Even though Lawyer A will be "counsel" for any firm clients, Lawyer B may meet with clients and/or witnesses and provide them with information under the supervision of Lawyer A. In dealings with opposing counsel or other third parties, Lawyer B should clarify that she is assisting Lawyer A or otherwise disclose that Lawyer B is operating under the supervision of Lawyer A.

If the supervising lawyer permits the foreign lawyer to perform functions that would be considered the unauthorized practice of law (such as taking a deposition by herself or appearing in court on behalf of a client), the supervising lawyer would be in violation of ER 5.5, which prohibits a lawyer from assisting someone in the unauthorized practice of law. Accordingly, Lawyer A is responsible for assuring that Lawyer B does not perform any legal services that could be considered the unauthorized practice of law. This requirement simply extends Lawyer A's responsibilities under ER 5.3 to supervise, adequately, Lawyer B's activities and assure Lawyer B's compliance with the Rules of Professional Conduct. See, Formal Op. 87-27 (December 30, 1987) (supervision of disbarred lawyer acting as nonlawyer assistant).

Lawyer B may be listed on the firm letterhead and have business cards as long as both clearly denote her foreign admission. A reference on the firm letterhead such as "licensed only in Illinois" is advisable. This disclosure provides anyone seeing the letterhead or business cards with adequate factual information about Lawyer B's status, in conformity to the requirements of ER 7.5

Two prior opinions of the Committee confirm that out-of-state lawyers and even nonlawyer assistants may be listed on law firm letterhead as long as their positions are clearly noted. See Formal Op. 85-09 (November 15, 1985) (affiliation of in-state and out-of-state lawyers acceptable with appropriate jurisdictional limits noted); Formal Op. 90-03 (March 16, 1990) (non-lawyer personnel may be listed on firm letterhead with status).

[1]Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. ã State Bar of Arizona 1996

[2]Reference to these other opinions, however, should not be construed as agreement by this Committee in their conclusions.