DONALD F. STEWARD PUBLIC COMMENTS ON ACJA 7-208 PROPOSED AMENDMENTS

I, Donald F. Steward, submit this public comment in opposition to the proposed amendments to ACJA Section 7-208 J(a) and (d). Said proposed amendments would substantially reduce the scope and quality of low-cost legal services available to the general public effectively baring thousands of low-income consumers each year from access to justice and their legal needs in general. In addition, the restrictions and prohibitions set forth in the proposed amendments, if enacted, would force many hard-working certified legal document preparers out of business who will no longer be able to offer the services they have built their businesses around. Moreover, the proposed changes are being set forth by the Board of Legal Document Preparers without any stated reason or cause for the dramatic change. I also object to proposed amendments to ACJA § 7-208 L (3)(b) and ACJA § 7-208 E (3).

My opposition is further based upon the following facts and grounds.

MY KNOWLEDGE OF THE ISSUES: In 2002, I served on the Arizona Supreme Court Ad hoc committee which drafted ACJA 7-208. I was intimately involved in constructing the language of the code, including 7-208 (F), which details the “Authorized Services” a certified legal document preparer may offer the general public. Thereafter, I was honored to serve on the first Board of Legal Document Preparers from 2003 to 2006, where we further developed the program, its policies, and procedures. I have also been a Certified Legal Document Preparer since the inception of the program and have served for many years as an officer of the Arizona Association of Independent Paralegals, the state’s largest professional association for LDPs.

AN LDP’S CURRENT AUTHORITY: Simply stated, LDPs are authorized to engage in a limited authority to practice law as it relates to the preparation of legal documents for and on behalf of a consumer for any legal purpose. The ACJA § 7-208(F)(1), titled “Authorized Services”, states that “A certified legal document preparer is authorized to: (1) Prepare or provide legal documents, without the supervision of an attorney, for an entity or member of the public in any legal matter when that entity or person is not represented by an attorney.” The LDP code of conduct, which describes LDP conduct in providing such services, also provides insight and clarification as to the scope of LDP services and intent of the program. For instance, the LDP code requires in part an LDP “shall respect and comply with the laws” (ACJA § 7-208(J)(1)(a)), “keep abreast of current developments in the law as they relate to legal document preparation, ACJA § 7-208(J)(2)(d), “provide complete documents to a consumer” and “meet document preparation deadlines in accordance with rules, statutes, court orders, or agreement with the parties” ACJA § 7-208(J)(4)(a). The LDP Code further requires LDPs “perform all duties and discharge all obligations in accordance with applicable laws, rules, or court orders” ACJA § 7-208(J)(5)(a), and that LDPs only accept assignments which “will result in an accurate document” ACJA § 7-208(J)(4)(b).

AN LDP’S ABILITY TO PREPARE SUBSTANTIVE LEGAL MOTIONS, SUPPORTING MEMORANDUM AND APPELLATE BRIEFS WAS THOROUGHLY VETED BY THE DRAFTING COMMITTEE AND MULTIPLE COURT COMMITTEES

The proposed change to ACJA § 7-208F(1)(a) would insert the following additional language:

“a legal document preparer shall not draft substantive legal motions, supporting memorandum or appellate briefs, except that a legal document preparer may assist a client with the completion of motions in family court proceedings using the appropriate court approved motion forms”.

As stated above, the proposed changes to ACJA § 7-208F(1)(a) have been offered with no explanation or justification. The proposal presumes to just know better, and completely disregards the hard work of the original ad hoc committee which drafted § 7-208 and numerous other committees that reviewed and approved ACJA § 7-208. The ad hoc committee consisted of numerous members of the Arizona State Bar, including the President of the Bar at the time, numerous attorneys with the Arizona Supreme Court, private attorneys, and several “independent paralegals”, including myself, whom would later be some of the first certificate holders. The ad hoc\ drafting committee, specifically contemplated, analyzed, and discussed the ability of document preparers to prepare motions, memorandums and appellate briefs, including whether such services could be offered in a manner consistent with the rules which would become ACJA § 7-208. After carefully considering these and other relevant issues, the ad hoc committee voted UNANIMOUSLY to approve these provisions. Prior to the vote, the State Bar Board of Governors UNANIMOUSLY voted to authorize its members, who were representing the Bar on the ad hoc committee, to vote in favor of approval. In addition, the provisions of ACJA § 7-208 referred to above went through a rigorous scrutiny and approval process with several committees, including the Committee on Limited Jurisdiction Courts, the Committee on the Superior Court, and The Arizona Judicial Council, all of which UNANIMOUSLY approved these provisions. It should be noted that among other considerations, each of these committees specifically contemplated, analyzed, and discussed the ability of document preparers to prepare motions, memorandums and appellate briefs, including whether such services could be offered in a manner consistent within the court rules. Finally, the Arizona Supreme Court Justices reviewed and approved UNANIMOUSLY, the same provisions referred to above, as they are currently written. Again, despite the extensive and thorough vetting of this issue, eighteen years later, these proposed changes are being offered without any discussion or analysis regarding the grounds or basis which may justify the changes. To be clear, there is in fact no justification or reasons in the interest of the LDP program or the public to approve the proposed changes, rather, if approved they will have a significantly negative impact on the public and the LDP program.

APPROVAL OF THE PROPOSED CHANGES WILL IMPACT THOUSANDS OF SELF-REPRESENTED LITIGANTS EACH YEAR.
Prohibiting the preparation of substantive motions, memorandum, and appellate briefs will deprive self-represented litigants from access to justice. While I am not aware of any formal studies which report on the volume of such work document preparers regularly performed for the general public, it can reasonably be estimated to be in the tens of thousands over the past eighteen years. Data from my own LDP business can provide some perspective. I have owned and operated an LDP business since the inception of the program, which annually served 800 to 1200 customers in a broad scope of legal matters, including civil, family, probate, business, and estate planning related matters. I estimate assisting 150 to 200 customers per year with various motions, mostly in civil or family court matters. Thus, since the inception of the program, I have prepared close to 3000 motions for consumers. There are hundreds of LDP businesses, many of which do a substantially larger volume of such work than my business for consumers on an annual basis. Such services are in high demand by the public and eliminating them for no reason does nothing but sever a consumer’s access to justice. In view of the above, I urge the court to reject the proposed changes to ACJA § 7-208F(1)(a)

APPROVAL OF THE PROPOSED CHANGES WILL FINANCIALLY IMPACT A LARGE SEGMENT OF THE LDP COMMUNITY
The court should also consider the devastating impact the proposed amendments will have on many LDPs who have a significant portion of their revenue come from preparing motions, memorandum, and appellate briefs. LDPs often operate on a shoestring budget and eliminating these services may cause many LDPs to go out of business, or have to raise prices on other services, all of which ultimately negatively impacts the consumer.

PROPOSED CHANGES TO ACJA § 7-208 F (1)(d) ARE ARBITRARY AND CAPRICIOUS

The proposed amendment to ACJA §7-208F(1)(d) reads that a certified legal document preparer is authorized to:

"Conduct legal research necessary to understand general legal principles to assist a client identify and complete a competent legal form or document. A legal document preparer shall not perform legal research for the purpose of providing a legal opinion, advice, or advocating a legal theory".

Again, these proposed changes to ACJA §7-208F(1)(d) are being offered without any statement as to the necessity or purpose of the change. It is not self-evident as to the need or purpose. The proposed provisions are arbitrary and capricious, and potentially conflict with other provisions of ACJA §7-208, such as an LDP’s authority to “prepare any legal document”, to provide consumers with specific “legal information”, and to provide consumers with “general factual legal information pertaining to legal rights, procedures, or options available to a person or entity”. Some of the many questions which arise concerning the proposed changes include:

Do the proposed changes prohibit a document preparer from assisting a consumer with legal research, at the direction of the consumer?

Would it be a violation of this provision to provide a consumer general legal information which contains a legal opinion, advice, or advocated a legal theory?

The language of the proposed amendment does not give an LDP reasonable notice of a potential violation of the provision. In view of the above, this proposed amendment should be rejected.

PROPOSED CHANGES TO ACJA § 7-208 L (3)(b) REQUIRING “PROFESSIONALISM TRAINING COURSE” IS WIHTOUT BASIS AND UNECESSARILY BURDENSOME

To be clear, this certificate holder has no issue with division staff providing the option of a training course on the role and responsibilities of the certified legal document preparer. However, requiring an LDP to do so seems to be entirely unnecessary and burdensome to the certificate holder who has just been determined by the program to be fully qualified for certification and having passed the required examination. It seems to be an upside-down approach to provide training on a subject after the certificate holder has been determined to be sufficiently knowledgeable, actually an expert, on the role and responsibilities of being a certified legal document preparer. It is particularly unnecessary for LDPs who have been practicing for many years, some of which for almost two decades. In addition, there are numerous opportunities for LDPs to take seminars, webinars, and to access resources for self-study on LDP ethics which almost always cover the basic roles and responsibilities. Such seminars and webinars are taught by instructors who are qualified and experienced LDPs as well as by attorneys. While in this certificate holder’s opinion the course is not needed, at least it should not be required. Again, the course is being proposed with no information offered as to need or potential benefits to the LDP community or the public.

THE PROPOSED ELIMINATION OF EXPERIENCE WORKING FOR THE COURT AS A QUALIFYING BASIS FOR CERTIFICATION IS WITHOUT BASIS ACJA § 7-208 E (3)

The proposed changes include eliminating work experience for the court as a basis to qualify for certification as a legal document preparer. Again, this significant change grounds for qualification is made without any stated justification or grounds. As stated above, this is another provision which was thoroughly reviewed by the original ad hoc committee and the other committees listed above and included as a possible basis to qualify for certification for good reason. Indeed, there are numerous positions within the various Arizona courts which provide experience in various legal matters rendering the employee more than competent to provide legal document preparation services to the general public. I am informed and believe there are numerous current and former court employees who have been certified as a legal document preparers. Removing this excellent source of potential LDPs is contrary to the best interest of the LDP program and the public. However, this certificate holder would support adding language to ACJA § 7-208 E (3) so as to clarify the nature of a court employee’s experience in order to qualify for certification. In its present form, this proposed amendment should be rejected.

Respectfully submitted this 30th day of September 2021

Donald F. Steward, AZCLDP #80339

This comment (attached) has been drafted on behalf of the Arizona Association of Independent Paralegals (AAIP) in response to the proposed amendments to ACJA Section 7-208. Specifically, it objects to the proposed amendments to ACJA § 7-208(F)(1) (authorized services); ACJA § 7-208(E)(3)(b)(6) (education and experience requirements), and ACJA § 7-208(L)(3) (professionalism course requirement).

In particular, this comment raises four primary objections to the proposed amendments to ACJA § 7-208(F)(1). First, the proposed amendments do not promote access to justice. Second, the proponents of the amendments have not shown any justification for the amendments. Third, the conduct proposed to be prohibited is actually contemplated by ACJA § 7-208 and has been practiced by Certified Legal Document Preparers ("CLDPs") for decades without demonstrable harm. Finally, the proposed amendments are unconstitutionally vague and overbroad and likely to lead to troubling interpretations and prosecution of otherwise law-abiding CLDPs. For the reasons stated above and argued in more detail in the attached comment, the proposed amendments to ACJA § 7-208(F)(1) must be rejected.

SINCE THE AAIP ATTORNEY, BRIAN LOCKER'S COMMENTS WERE PREVIOUSLY SUBMITTED BUT ARE NOT POSTED YET, I AM SUBMITTING THEM AGAIN TO BE SURE THEY HAVE BEEN RECEIVED:

SEE COMMENTS ATTACHED HERETO

I’m a single mom who is in favor of legal document preparers. If these document preparers are no longer available, you will be doing a great injustice to people who do not have the finances to pay for a lawyer, if there’s been an injustice. LDP’s give the lower and middle class a chance to get justice. My LDP, listens to me and what I want to say, and gets it done. It’s a persons choice to hire a lawyer or to represent themself, and if they choose to represent themself and hire a LDP, that’s their choice and the person takes responsibility for it, as I sad. It’s their choice. Losing the ability to hire an LDP would be a great injustice.

I, Cherie Koch, respectfully submit my public comment to the proposed changes to Section 7-208 of the Arizona Code of Judicial Administration. It is my opinion that the proposed changes will: 1) cause irreparable injury to Arizonans who rely upon CLDP’s to have affordable access to legal services, and 2) will force hundreds of CLDP’s out of business. The proposed changes will gut the program and deprive Arizonans of their opportunity to be heard in Arizona Courts in civil, probate, juvenile or criminal matters as well as curtail their ability to have a CLDP draft other documents (e.g., Will, Mechanic’s Lien, Power of Attorney, etc.) where there is no “court-approved form.”

Please see my entire comment in the attached PDF, as well as an article from the Institute for Justice (who fought for the CLDP Program) and another article from the Dept. of Justice website. he American Bar Association set up a special task force whose goal was to propose a "model definition of the practice of law." The Department of Justice and the Federal Trade Commission had to intervene, because the ABA's ultimate definition was so overly broad. The FTC and the DOJ had to intervene because the ABA's turf protecting threatened commerce because their definition would have interfered with commerce and daily life. With the ABA's definition of the practice of law would have interfered with a person's ability to "secure legal rights" when writing a check without being a lawyer! I see these rule changes going down the same slippery slope and are more about turf protecting than concern for harm to the public.