News & Insights

This month’s column discusses the intent of the ABA’s Resolution 402, which passed in August, reaffirming the ABA’s disapproval of the sharing of legal fees with non-lawyers as was established by ABA Model Rule 5.4. The August action comes shortly after an Arizona’s task force identified ER 5.4 as a barrier to innovation in the delivery of legal services and repealed the Rule to allow legal practices to experiment with alternative business models (including the utilization of non-lawyers) in the hopes that increased efficiencies will reduce the cost of legal services. Read about what’s likely behind the Rule, and what’s happening as Arizona experiments with its repeal.

This month’s column discusses a recent case out of Massachusetts, Bassichis v. Flores, 2022 WL 2379417, 2022 Mass. LEXIS 297 (Mass. Jul. 10, 2022), highlighting the breadth of the litigation privilege afforded to lawyers for statements made in connection with a judicial proceeding. The ruling is consistent with Arizona’s case law on litigation privilege, reasoning that vigorous representation of clients would be chilled considerably if lawyers feared being held liable for tortious conduct whenever their statements to litigation opponents could be characterized by those opponents as untrue. The litigation privilege, however, is not a green light for lawyers to make false or malicious statements.

On April 18, 2022, the Association of Professional Responsibility Lawyers (APRL) sent a proposal to the ABA to revise ER 5.5 (unauthorized practice of law) advocating that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time. This month’s column discusses this effort and why it may gain traction.