It’s a real-life story posted last November by would-be whistle-blowing criminal defense lawyer Karyl A. Krug who until she was injudiciously shown the door had been a Capital Staff Attorney in the Arizona Death Penalty Judicial Assistance Program.
Krug is no crank. A 20-year Texas board-certified criminal law and criminal appellate law specialist turned Arizona lawyer, her experience, credentials and distinctions enviably run three pages.
She’s a former Chair of the Criminal Law Exam Commission for the Texas Board of Legal Specialization. She Chaired the ABA Habeas Reform Subcommittee; and Co-Chaired the ABA Criminal Justice Section, Appellate and Habeas Committee. In 1996, Krug garnered the second DNA exoneration in Texas. And besides 18 reported cases, she also had the first published Vienna Convention case in Texas on behalf of a foreign national. Oh, and she also served on the ABA’s Postconviction Task Force to advise Standards Committee and done a lot more other stuff than most lawyers ever will.
Slings and arrows.
But hers is a cautionary tale. If someone so impeccably credentialed can suffer such ‘slings and arrows,’ then what of lesser mortals? More dismayingly, it also hollows out the resolve and reliability of UPL enforcement actions in the Grand Canyon state.
But before getting to her provocatively-titled story, “Arizona Is Calling All Topless Lawyer Wannabes,” which necessarily must be filed in the prodigious ‘no good deed goes unpunished’ folder, here’s some background.
A mess of things.
Over the years, Arizona along with most other jurisdictions has pretty much made a mess of defining what is and what isn’t the practice of law. Indeed, more than a half-century ago, the state supreme court in State Bar of Arizona v. Arizona Land Title & Trust Co. 366 P.2d 1, 90 Ariz. 76 said “In the light of the historical development of the lawyer’s functions, it is impossible to lay down an exhaustive definition of “the practice of law” by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work.”
Still, give the high court credit for trying. There is after all, an Arizona definition and while not statutory, it’s nevertheless the governing rule, Arizona Supreme Court Rule 31, “Regulation of the Practice of Law.” And notwithstanding the rule’s 21 exceptions, it’s meaning is clear to everybody — except the lawyers and non-lawyers who’re supposed to follow it.
In Arizona, for example, non-lawyers known as certified legal document preparers can prepare pleadings/wills/other legal documents; attend administrative proceedings; handle pre-trial activities; negotiate legal matters; appear in court; attend real estate closings; participate in state administrative proceedings; and participate in alternative dispute resolution proceedings.
I know it when I see it.
Not that things are clearer elsewhere. In Minnesota, for instance, in a bit of unintended understatement, that state’s supreme court said, “The line between what is and what is not the practice of law cannot be drawn with precision.”
And reminiscent of what Justice Potter Stewart memorably said about knowing something when he sees it, the court added, “Lawyers should be the first to recognize that between the two there is a region wherein much of what lawyers do every day in their practice may also be done by others without wrongful invasion of the lawyers’ field.” See Cardinal v. Merrill Lynch Realty/Burnet, 433 NW2d 864 (Minn. 1988).
The courts, though, wouldn’t necessarily be better off applying Lord Justice Jeremy Stuart-Smith’s “well known elephant test” from Cadogan Estates Ltd v Morris. Referring to an elephant, the Lord Justice said, “It is difficult to describe, but you know it when you see it.”
Meanwhile in Arkansas, that state’s highest court threw up its collective hands and said it was “impossible to frame any comprehensive definition of what constitutes the practice of law” and added, “perhaps it does not admit of exact definition.” See Arkansas Bar Association v. Block, 323 S.W.2d 912 (1959).
UPL — Unauthorized Practice of Law.
Amorphous definitions or not, states do try — albeit with varying degrees of commitment but plenty of lip service to crack down on what’s supposed to be unauthorized practice. But getting arms around the spiny porcupine isn’t easy.
Almost two years ago to modest fanfare, the Arizona State Bar announced it was partnering with U.S. Citizenship and Immigration Services and other local and federal agencies to crack down on the unauthorized practice of immigration law. However, it was all part of a nationwide public relations effort initiated not by the Arizona bar but by U.S. Citizenship and Immigration Services (USCIS).
Enforcement? What enforcement?
But without a universal probe library (UPL) or an upper prediction limit (also UPL), it’s difficult to figure how serious or successful these crack downs are to more forcefully restrain that better-known UPL, the unauthorized practice of law.
Arizona does have a statute dealing with the unauthorized practice of immigration and nationality law, although it’s hard to say how many prosecutions let alone class 6 felony convictions the attorney general has made to prevent or stop violations.
But other than this single UPL immigration statute, as Krug points out, it’s not otherwise a crime in Arizona to engage in unauthorized practice of law. The only remedies hereabouts are civil injunction, civil contempt, and a civil fine. And as for what money is spent policing UPL, good luck on that. It’s not readily known since the number’s buried in the $5MM or so the disciplinary wheels spin regulating Arizona lawyers.
All the same, according to the state bar’s website and its last update three years ago this month, only 27 UPL formal complaints have been filed; 14 UPL cease and desist consent agreements signed; and 4 contempt actions filed. By comparison, that’s a far cry from the 695 full screen lawyer disciplinary investigations performed just in 2012.
But not to pick just on Arizona, the enforcement is scatter-shot most everywhere else. It’s underfunded, under-reported and underwhelmed. Not surprisingly, some jurisdictions even have as much trouble defining UPL as they do the practice of law. If you can’t define it, is there any wonder enforcement’s so erratic?
Moreover, the last report of any consequence was almost two years ago when the American Bar Association (ABA) Standing Committee on Client Protection rolled out its 2012 Survey of Unlicensed Practice of Law Committees.
Here are a couple of highlights: “Twenty-three jurisdictions actively enforce UPL regulations, although some jurisdictions indicate that insufficient funding or resources make enforcement challenging. Nine jurisdictions stated that enforcement is inactive or non-existent.
“Most jurisdictions either do not have a specific annual expenditure for UPL enforcement or were unaware of the exact amount.”
Topless Lawyer Wannabes.
So getting back to Suzette Hall, the Colorado woman busted for giving topless haircuts and how that ties into practicing law in Arizona without a license. Unlike lawyers who proudly display law licenses on office walls, Suzette’s male customers apparently never bothered to ask about her cosmetology credentials. They just paid the $45 to get the topless haircut. So Karyl Krug’s point in her blog post is that “Colorado is tougher on unlicensed hairdressers than Arizona is on unlicensed attorneys.
“Colorado must be a very conscientious state. In Colorado, Suzette Hall was arrested for suspicion of practicing cosmetology without a license. I am assuming it is because she was practicing her craft sans a trendy burnout tee from the Sundance Catalog; or a shirt of any kind. Whether toplessness constitutes reasonable suspicion to believe that one does not have a license to practice one’s chosen profession in Colorado, much less probable cause for an arrest, I will leave to the authorities in Colorado.
“By contrast, you cannot get arrested in Arizona for practicing law without a license, clothed or otherwise. Since we have had a multitude of topless demonstrations in Tempe and Phoenix in the recent past, I think it might be safe to say that Ms. Hall could have declared herself a topless lawyer in Arizona without fear of arrest.
“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.
“This is in stark contrast to Texas, known as that other crazy, red, Wild West state. I have been licensed to practice law in Texas for 20 years. It is a third degree felony to practice law without a license and get paid to do so, punishable by two to ten years in prison. In Arizona, it is a violation of Arizona State Bar Rules, but it is not a crime.”
The rest of Krug’s legal reality story describes what happened to her after she outed a non-lawyer colleague working as a ‘Capital Staff Attorney’ in the Arizona Death Penalty Judicial Assistance Program. Both were dispensing legal advice to “trial judges statewide on the law in death penalty cases” and writing “proposed orders and legal memoranda.” Only thing is Krug’s colleague wasn’t a lawyer although she held herself out to be one and was actually called one!