AZ HB2119 seeks to limit State Bar authority by giving it to the Supreme Court

And so begins Arizona’s legislative session for 2018.   A surprising bill, HB2119 (Rep. Kern, sponsor), that seeks to place the power of attorney regulation directly in the hands of the AZ Supreme Court has made its way into the session.  Homeowner rights advocates and activists must jump on this bill and support it to reign in the abuse by rogue HOA attorneys.

Here is a summary that adds § 12-119.06:

A. TO THE EXTENT PROVIDED BY THE ARIZONA CONSTITUTION, ALL
REGULATORY FUNCTIONS RELATING TO THE PRACTICE OF LAW, INCLUDING THE
REGULATION OF ATTORNEYS IN THIS STATE, ARE WITHIN THE AUTHORITY OF THE SUPREME COURT.

B. . . .THE SUPREME COURT MAY USE MANDATORY ASSESSMENT MONIES ONLY FOR THE FOLLOWING REGULATORY FUNCTIONS FOR ATTORNEYS WHO ARE UNDER THE ACTIVE SUPERVISION OF THE SUPREME COURT:

1. ADMITTING AN ATTORNEY TO THE PRACTICE OF LAW.
2. MAINTAINING ATTORNEY RECORDS.
3. ENFORCING THE ETHICAL RULES THAT GOVERN ATTORNEYS.
4. REGULATING ANY CONTINUING LEGAL EDUCATION MANDATES FOR
ATTORNEYS.
5. MAINTAINING ATTORNEY TRUST ACCOUNT RECORDS.
6. PREVENTING THE UNAUTHORIZED PRACTICE OF LAW.
7. MAINTAINING THE CLIENT PROTECTION FUND, BOARD OF LEGAL
SPECIALIZATION AND THE APPOINTMENT OF CONSERVATORSHIPS TO PROTECT CLIENT INTERESTS.

C. THE STATE BAR OF ARIZONA MAY ESTABLISH, COLLECT AND USE
VOLUNTARY MEMBERSHIP DUES FROM AN ATTORNEY FOR ANY LAWFUL ACTIVITY THAT IS NOT INCLUDED IN SUBSECTION B OF THIS SECTION

The common violations by attorneys come under the AZ Rules of Civil Procedure R.11(b)

(b) Representations to the Court. By signing a pleading, motion, or other document, the attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

and the AZ Supreme Court Rules of Professional Conduct, R.42, V, D, E.R. 3.1.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous, which may include a good faith and nonfrivolous argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Please note that R11(c) provides sanctions for a violation of R11(b)

c) Sanctions.
(1) Generally. If a pleading, motion, or other document is signed in violation of this rule, the court–on motion or on its own–may impose on the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee.
Published in: on January 10, 2018 at 5:22 am  Comments (1)  

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  1. I support this law. It will help prevent the abuse which many victims experience by unethical attorneys that take advantage of the court system for financial gain or will use any tactic they can think of just to win. Enforcing ethical rules that govern attorneys is needed and it needs to be independent of the BAR association which protects its own. If the AZ Supreme Court will monitor the behavior and action of attorneys, it will be a better way to have the attorneys understand that they will be held responsible. It will be a better way to make sure that the public is protected. Preventing unauthorized practice of law is important. I would add: “especially by attorneys who are not licensed in Arizona”. It is very important to hold attorneys responsible for representations to the court. I would add: “holding every attorney responsible for evidence they present”. In my HOA case, the opposing attorney actually presented false evidence. My e-mail had been altered to seem as if I had written something that I knew I did not write. The HOA attorney tried to insist but I knew I did not write it and he was caught when my attorney noticed that my e-mail was not correct thus the e-mail could not have written by me. It was not even spelled correctly. I really wish that the attorney had been sanctioned. When attorneys present false evidence they should be help responsible and sanctioned. I especially support not allowing attorneys to present frivolous arguments for extending, modifying or reversing a law or establishing a new law. I also experienced the opposing attorney trying to use a new law that was not even effective as of the date of their hearing. I won the case. However, I was shocked by the tactics that some attorneys will use. Completely unacceptable behavior. While I believe that there are many honest and ethical attorneys such as Jonathan Dessaules, I also learned that not all attorneys are completely honest which is one of the reasons that we need the laws being presented to be approved. The public needs to be protected.


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