Jennifer Albright, Staff to Legal Services Task Force:

April 27, 2020, Amendments to proposed ACJA § 7-210.
The first comment period for this proposal ended March 30. Based on comments and to this proposal and Rule Petition R-20-0034, an amended proposal for ACJA 7-210 was filed. The following summarizes the amendments made:

The amendments to ACJA § 7-210 are centered in subpart (J), Code of Conduct. In the original proposal, the ethical obligations of LLLPs were not fully defined. Subpart (J)(1) now states that Supreme Court Rule 42 applies to LLLPs and provides guidance on how to read those rules in applying them to LLLPs. Except for ER 5.5(c) – (h), all ethical rules in Rule 42 are applicable to LLLPs.

Based on a suggestion to develop a pathway for current working paralegals to become LLLPs, an additional path to licensure was added to ACJA § 7-210. Section 7-210(E)(3)(c) was added creating an educational waiver for applicants who have seven years of experience as a paralegal and who can demonstrate a specific amount of substantive legal experience in each area they seek licensure. The waiver is for the education requirements of only § 7-210(E)(3)(b)(7). Applicants meeting the experience requirements would be allowed to take the examination and be required to follow the remaining licensing processes.

In addition, there was a slight reorganization to ACJA § 7-210(J)(5). Subpart (d) was divided into two separate sub-parts, expanding the list from four items to five. However, no substantive changes were made.

Posted by AOC Staff on behalf of:
Luis Santaella
Deputy City Attorney
City of Scottsdale City Attorney’s Office

I have attached a memo that discusses the Constitutional considerations related to legal representation/participation by non-lawyers in the representation of defendants. The memo does not address appointment of counsel for indigent defendants. In addition to the case information provided in the attached memo, I provide additional comments below.

Licensed legal paraprofessionals should not be allowed to represent criminal defendants facing a loss of liberty in limited jurisdiction courts. Fortunately, the current proposed rules do not allow for such representation and I believe there would be constitutional issues if their scope of practice was expanded to include representation of defendants facing a loss of liberty. I strongly oppose any effort to expand their scope of representation where a criminal defendant is facing a loss of liberty.

In terms of legal paraprofessionals representing defendants not facing a loss of liberty, I think they should be prohibited from representing defendants during a jury trial. Most misdemeanor offenses in limited jurisdiction courts do not have the right to trial by jury. Defendants in DUI cases have a right to a trial by jury but since jail time is automatic upon conviction of a DUI, licensed paraprofessionals would be ineligible from representing defendants in such cases. However, theft, shoplift, indecent exposure cases, resisting arrest, any offense with a sexual motivation as an element of the offense and reckless driving are all misdemeanor offenses in which the defendant has a right to a jury trial and are offenses where the prosecution may not be seeking jail time. Conducting a jury trial is a very complex and legally technical activity. It is my opinion that only licensed attorneys should be authorized to conduct criminal jury trials. It should be noted that all of the aforementioned case types have potentially significant collateral consequences depending on immigration status, driving record, employment prospects or prior sex offenses.

I would respectfully request that my comments be taken into account during the drafting and adoption of the pertinent Arizona Code of Judicial Administration Rules. Please note that I may provide additional comments in the future. Thank you for your time and consideration.

Luis Santaella
Deputy City Attorney
Prosecution, Public Safety & Victim Services
Scottsdale City Attorney’s Office