An Arizona attorney may permit his non-lawyer paralegal, who is a licensed tribal advocate, to represent clients in tribal court if that court’s rules so permit, because that court’s rules govern the conduct. Such representations will not run afoul of the Arizona lawyer’s duty to not
assist unauthorized practice of law as long as the paralegal representation is limited to tribal court. [ER 5.3, 5.4, 5.5, 8.5]
Attorney is licensed to practice law in Arizona and in the Salt River Pima-Maricopa Tribal Court ("SRPM Court"). In SRPM Court, attorneys and non-attorneys may be licensed as "tribal advocates." Attorneys may represent tribal members in the criminal division of SRPM Court, but are not permitted to represent plaintiffs in the civil division. Attorney's paralegal ("Paralegal") is a licensed tribal advocate, and because she is not an attorney, under the rules of SRPM Court she may represent plaintiffs in the civil division of SRPM Court.
Attorney's practice includes representation of lenders in collection matters in SRPM Court. Attorney's client is aware of the restriction on representation in the civil division of SRPM Court, and consents to representation by Paralegal, under Attorney's supervision.
Given the fact that non-attorneys may represent clients as licensed tribal advocates in the civil division of SRPM Court, may an Arizona attorney's paralegal, under the attorney's supervision, so represent clients in the civil division of SRPM, with informed consent of the arrangement by clients?
APPLICABLE ETHICAL RULES
ER 5.3 Responsibilities Regarding Non-lawyer Assistants
With respect to a non-lawyer 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 non-lawyer 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 if engaged in by a lawyer if:
(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.
ER 5.4 Professional Independence of a Lawyer
(a) A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and
(3) a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan in based in whole or in part on a profit-sharing arrangement.
(b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a non-lawyer is a corporate director or officer thereof; or
(3) a non-lawyer has the right to direct or control the professional judgment of a lawyer.
ER 5.5 Unauthorized Practice of Law
A lawyer shall not:
(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 of the bar in the performance of activity that constitutes the unauthorized practice of law.
ER 8.5 Jurisdiction
A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.
These facts raise two questions. First, which ethical rules govern the situation? Second, if the representation is governed by the SRPM Court rules, may the Attorney ethically supervise the Paralegal without "assisting the unauthorized practice of law"?
The Committee previously has issued a formal opinion regarding the jurisdictional question in the context of tribal court. In Opinion 90-19, the inquiring attorney was a member of both the Arizona bar and the Navajo bar. The ethical rules of the two bars were in conflict on an issue concerning judicial appointments for indigent defendants. Under the Arizona rules, the attorney would have been obligated to decline an appointment due to conflict of interest. Under the Navajo rules, however, the attorney was obligated to accept the appointment.
In answering the inquiring attorney's seeming dilemma, the Committee concluded:
[A]n attorney who is a member of both the Arizona and Navajo Nation Bars, and who is appointed by a Navajo Nation court to represent an indigent Navajo citizen in a criminal proceeding before a Navajo court, is not subject to disciplinary action by the State Bar of Arizona if the attorney complies with the Navajo Nation's ethical rules and court directives.
In reaching that conclusion, the Committee considered the comment to ER 8.5, which provides that "[w]here the lawyer is licensed to practice law in two jurisdictions which impose conflicting obligations, applicable rules of choice of law may govern the situation." This, the Committee reasoned, means that "there may be limitations on the binding force of the Arizona Rules on such a lawyer when the lawyer is licensed to practice in another jurisdiction whose ethical rules impose obligations which conflict with Arizona's rules." The Committee then analyzed the choice of law rules from the Restatement (Second) of Conflicts of Law, and concluded that the Navajo rules applied to the situation.
For the same reasons discussed in Opinion 90-19, in the instant case the SRPM Court rules should apply to this situation. This situation differs somewhat from that analyzed in 90-19, however, because the proposed behavior here (supervision of a paralegal who is representing clients) is an optional behavior, not one that is required by the court (as the appointment was required by the Navajo courts in Opinion 90-19). Non-lawyers are specifically authorized to represent clients in SRPM Court and non-lawyers clearly cannot represent clients in Arizona courts. This has the potential to create a conflict for an Arizona attorney who assists a non-lawyer in representing clients (in and outside of Court) on matters pending in SRPM Court. The conclusion that the tribal laws govern the representation in tribal court, however, remains the same.
Having concluded that the SRPM Court rules apply to the representation of clients in SRPM Court, even if they create a conflict with Arizona's Ethical Rules, the question remains whether the Attorney's supervision, which does not necessarily occur only in SRPM Court, is assisting the unauthorized practice of law in violation of ER 5.5. That rule provides that a lawyer shall not "assist a person who is not a member of the bar in performance of activity that constitutes the unauthorized practice of law." This Committee recently considered the meaning of that phrase in Opinion 99-07. That Opinion concerned activity by public adjusters that was specifically allowed by state statute. Nonetheless, the Committee found that the activity by the public adjusters constituted the unauthorized practice of law and that lawyers who negotiated with such public adjusters thereby were impermissibly assisting the unauthorized practice of law.
Under the reasoning of Opinion 99-07, it is clear that the activity in which the Paralegal is engaging (representing clients in court) constitutes the practice of law. See also Opinion 98-08 (paralegal may conduct interviews and meetings with clients under limited circumstances under attorney's supervision.) Under the same reasoning, it is equally clear that the Attorney's supervision of such activity is assisting the practice of law. The question is whether the practice is "unauthorized." This situation differs significantly from that in Opinion 99-07, because here we are dealing with the ethical rules of another jurisdiction (SRPM Court) that is outside the jurisdiction of the Arizona Supreme Court; we are not dealing with statutes that apply in our jurisdiction (as was the case in Opinion 99-07). For this reason, the Committee finds that Opinion 99-07 is not controlling of the instant situation. Rather, for the reasons discussed above, the Committee finds that because the SRPM Court rules allow the representation by the Paralegal and the supervision by the Attorney, the Attorney will not be assisting the unauthorized practice of law in violation of ER 5.5.
For all the reasons set forth above, the Committee concludes that when an Attorney and his non-attorney assistant represent clients in conformance with applicable rules of a Native American tribal court, the ethical rules of such court govern the conduct. If such rules conflict with Arizona rules, the Attorney will not be in violation of the Arizona rules if she follows the tribal court rules.