By Order dated August 27, 2020, the Arizona Supreme Court eliminated its Ethical Rule 5.4, becoming the first State to allow non-lawyers to acquire ownership interests in law firms.
Under the newly enacted Arizona Supreme Court Rule 31.1(c), an Alternative Business Structure may be established in the form of an entity that includes non-lawyers who have an economic interest or decision-making authority in the law firm, where: (1) the entity employs at least one person who is an active member in good standing of the State Bar of Arizona under Rule 32 who supervises the practice of law under Ethics Rule 5.3; (2) it is licensed pursuant to Arizona Code of Judicial Administration §7-209 (a newly enacted provision that sets forth regulatory requirements for the administration of the licensure of such Alternative Business Structures); and (3) the legal services are only provided by persons authorized to do so and in compliance with the Rules of Supreme Court.
Ethical Rule 5.3 (Responsibilities Regarding Nonlawyers) was amended extensively to provide that: (a) A lawyer in a firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the conduct of nonlawyers engaged in activities assisting lawyers in providing legal services and those who have access to attorney-client information, is compatible with the professional obligations of the lawyer.; and Reasonable measures include, but are not limited to, adopting and enforcing policies and procedures designed:
(1) to prevent nonlawyers in a firm from directing, controlling, or materially limiting the lawyer’s independent professional judgment on behalf of clients or materially influencing which clients a lawyer does or does not represent; and
(2) to ensure that nonlawyers assisting in the delivery of legal services or working under the supervision of a lawyer comport themselves in accordance with the lawyer’s ethical obligations, including, but not limited to, avoiding conflicts of interest and maintaining the confidentiality of all lawyer client information protected by ER 1.6.
(b) A lawyer having supervisory authority over a nonlawyer within or outside a firm shall make reasonable efforts to ensure that the nonlawyer’s conduct when engaged in activities assisting lawyers in providing legal services is compatible with the professional obligations of the lawyer.
(1) Reasonable efforts include providing to nonlawyers appropriate instruction and supervision concerning the ethical aspects of their employment or retention, particularly regarding the obligation not to disclose information relating to the representation of the client.
(2) Measures employed in supervising nonlawyers should take into account that they may not have legal training and are not subject to professional discipline.
(3) When retaining or directing a nonlawyer outside the firm to assist the lawyer’s delivery of legal services, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.
(4) Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer.
(c) A lawyer shall be responsible for conduct of such a person a nonlawyer 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 has managerial authority in the firm and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
(d) When a firm includes nonlawyers who have an economic interest or managerial authority in the firm, any lawyer practicing therein shall ensure that a lawyer has been identified as responsible for establishing policies and procedures within the firm to assure nonlawyer compliance with these rules.
Arizona Supreme Court R-20-0034 (Aug. 27, 2020).
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