State Bar v. Lang

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE BAR OF ARIZONA, Plaintiff/Appellee,
v.
RANDY D. LANG, Defendant/Appellant.
No. 1 CA-CV 12-0629
FILED 4-29-2014
Appeal from the Superior Court in Maricopa County
No. CV2009-012054
The Honorable Mark H. Brain, Judge
AFFIRMED
COUNSEL
State Bar of Arizona, Phoenix
By Edward W. Parker
Counsel for Plaintiff/Appellee
Arthur P. Allsworth, Attorney at Law, Phoenix
By Arthur P. Allsworth
Counsel for Defendant/Appellant
STATE BAR v. LANG
Opinion of the Court
OPINION
Presiding Judge Peter B. Swann delivered the opinion of the Court, in
which Judge Patricia K. Norris and Chief Judge Diane M. Johnsen joined.
S W A N N, Judge:
¶1 Randy D. Lang, a nonmember of the State Bar of Arizona,
was enjoined from practicing law in Arizona based on evidence that he
repeatedly engaged in the unauthorized practice of law. We hold that a
person who presents himself as an attorney based in an Arizona office
engages in the unauthorized practice of law unless he has been admitted
to practice before the Arizona Supreme Court, even if he has been
admitted to practice in a tribal court within the boundaries of Arizona.
The supreme court rules that compel this conclusion violate neither the
First Amendment nor principles of tribal sovereignty. We further
conclude that the superior court properly granted the State Bar of
Arizona’s motion for summary judgment, and that the injunction is
reasonable in its scope. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Lang holds a law degree and is admitted to practice law in
the San Carlos Apache Tribal Court. He has never been admitted to the
practice of law by the Arizona Supreme Court, and he is not a certified
legal document preparer under section 7-208 of the Arizona Code of
Judicial Administration.
¶3 From 2007 to 2009, the Bar, which is tasked under Ariz. R.
Sup. Ct. 32(a) with regulating and disciplining persons engaged in the
practice of law in Arizona, received a series of reports that Lang had
engaged in the unauthorized practice of law. Upon receiving each report,
the Bar notified Lang and demanded that he cease any activity defined as
the practice of law in Arizona. When Lang did not comply with these
demands, the Bar commenced an action against him in the superior court.
In its amended complaint, the Bar alleged five counts of unauthorized
practice of law and argued that an injunction was necessary to prevent
Lang from continuing his unlawful conduct. Lang answered and asserted
a counterclaim that was later dismissed for failure to prosecute.
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STATE BAR v. LANG
Opinion of the Court
¶4 In September 2011, the Bar moved for summary judgment
on three counts of its complaint and notified the court that it wished to
voluntarily withdraw the remaining two. Lang objected to the Bar’s
motion and filed a motion to dismiss Counts 1, 4, and 5 for lack of subject
matter jurisdiction. He also objected to the Bar’s request to withdraw
Counts 2 and 3, arguing that the request did not state adequate legal
reason for dismissal under Ariz. R. Civ. P. 41(a). Lang then filed a cross-
motion for summary judgment in which he sought dismissal of Counts 2
and 3 with prejudice. The Bar agreed to dismissal of Counts 2 and 3 with
prejudice, and the court entered an order to that effect. With respect to the
remaining counts, the undisputed evidence showed the following.
I. COUNT 1
¶5 In September 2006, Lang entered an “Attorney-Client
Agreement” with T.M., a former professional boxer. The agreement was
printed on letterhead that showed Lang’s name, the name “Integrated
Legal Services & Associates,” an Arizona address not located on the San
Carlos Apache reservation, and Arizona fax and phone numbers,
including an “Office” number. The agreement provided that “Attorney
Lang agrees to provide attorney services to Boxer [T.M.] as his personal
attorney and counselary on a worldwide basis on all matters concerning
Boxer [T.M.]” and that “Boxer [T.M.] acknowledges and understands that
Attorney Lang is engaged in international business and law and is a
licensed practicing attorney in various international for[u]ms, that
Attorney Lang is not licensed with any state Bar of the United States, and
that Attorney Lang practices in limited federal jurisdictions and may
appear in any state court proceedings with permission from the court.”
Lang signed the contract as “Attorney.”
¶6 According to Lang, he then acted “as scrivener” for contracts
that T.M. entered with an athletic trainer and a Nevada-based
promotional company. In an e-mail to the promotional company, Lang
identified himself as T.M.’s “personal attorney,” stated that he had
“reviewed the Agreement with Mr. [T.M.] line by line,” and requested
changes to the contract. Lang signed both the promotional contract and
the training contract as T.M.’s “attorney,” the promotional contract
identified Lang’s Arizona address, and the training contract repeatedly
referred to Lang as “Attorney Lang” and provided that Lang would
represent T.M. in any disputes.
¶7 Lang also e-mailed and mailed a Nevada assistant attorney
general on T.M.’s behalf. In the e-mail, Lang identified himself as T.M.’s
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STATE BAR v. LANG
Opinion of the Court
“attorney” and “Personal Attorney,” stated legal arguments and opinions
concerning a report that showed Nevada’s denial of T.M.’s boxing license,
and demanded that the report be amended. In the mailed letter, Lang
again demanded that the license report be amended, threatened legal
action, and signed as T.M.’s “Personal Attorney.” The letter was printed
on “I.L.S. & Associates” letterhead that identified Lang as “Attorney” and
gave an Arizona address, phone number, and fax number. Using similar
letterhead, Lang again identified himself as T.M.’s “personal attorney” in
a letter that he wrote to the Missouri parole board regarding T.M.’s
incarcerated brother.
II. COUNT 4
¶8 In March 2008, Lang met with S.J. in Arizona and agreed to
represent S.J., a Washington resident, in a federal employment law matter.
In connection with that representation, Lang drafted a notice of appeal in
which he identified himself as S.J.’s “Attorney,” “Personal Attorney,” and
“counsel,” and indicated that he worked for I.L.S. & Associates in
Arizona. I.L.S. & Associates charged S.J. an initial consultation fee and a
flat-fee retainer for “Legal Service.”
¶9 Lang also wrote a settlement letter on S.J.’s behalf in
connection with a dispute arising from a Washington real estate
transaction. The letter was addressed to a Washington attorney and was
printed on “I.L.S. & Associates” letterhead that identified Lang as
“Attorney” and gave Arizona contact information, including an “Ofc.”
phone number.
III. COUNT 5
¶10 In July 2008, Lang entered an “Attorney-Client Fee
Agreement” with J.C., a California resident, by which “DPL, Inc.” agreed
to provide “legal services.” The agreement was prepared by Lang’s
assistant, who had also helped him to form an Arizona corporation named
“Debt Protection, Inc.” The agreement was printed on “Debt Protection
Legal, Inc.” letterhead that showed an Arizona address not on the
reservation, toll-free office phone and fax numbers, and an Arizona
mobile number for the “Managing Attorney,” who was identified in the
signature block as Lang.
¶11 In representing J.C., Lang wrote a letter to a California loan
consultant for the purpose of disputing debt attributed to J.C. The letter
was printed on “Debt Protection Law, P.C.” letterhead that showed a
California address, toll-free office phone and fax numbers, and an Arizona
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Opinion of the Court
phone and fax number for “Senior Managing Attorney” Lang. Lang
stated in the letter that his “law firm” represented J.C., and he signed the
letter “For the Firm.”
¶12 After considering the evidence and holding oral argument,
the superior court denied Lang’s motion to dismiss Counts 1, 4, and 5 and
granted summary judgment for the Bar on all three counts. The court
ordered restitution to S.J. and J.C. and entered a permanent injunction
restraining Lang from performing acts constituting the practice of law in
Arizona. Lang timely appeals.
APPELLATE JURISDICTION
¶13 As an initial matter, Lang asserts that we may not have
jurisdiction over this appeal because the order dismissing Counts 2 and 3
was not signed and, over his objection, the signed judgment did not
mention the dismissal or include Ariz. R. Civ. P. 54(b) language. Lang’s
assertion has no merit. The order of dismissal preceded the judgment,
and the judgment resolved all claims remaining in the case. Rule 54(b)
therefore does not apply. The judgment is a final appealable order that
allows appellate review of “any intermediate orders involving the merits
of the action and necessarily affecting the judgment, and all orders and
rulings assigned as error.” A.R.S. §§ 12-2102(A); see 12-120.22(A). We
have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶14 Lang contends that the superior court lacked subject matter
jurisdiction to consider his conduct, that summary judgment was not
warranted based on the undisputed evidence, and that the injunction is
overbroad. We review challenges to subject matter jurisdiction and
questions involving the application and interpretation of court rules de
novo. Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8, 282 P.3d 428, 432 (App.
2012). We also review the grant of summary judgment de novo, viewing
the evidence and all reasonable inferences in the light most favorable to
Lang. See Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).
We review the scope of an injunction for abuse of discretion. See City of
Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 187, ¶ 51, 181 P.3d 219,
234 (App. 2008).
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STATE BAR v. LANG
Opinion of the Court
I. THE SUPERIOR COURT HAD JURISDICTION OVER THE BAR’S
AMENDED COMPLAINT.
¶15 The Arizona Constitution gives our supreme court exclusive
authority to regulate the practice of law in Arizona. In re Creasy, 198 Ariz.
539, 541, ¶ 6, 12 P.3d 214, 216 (2000). The supreme court has disciplinary
jurisdiction over individuals who are not members of the Arizona Bar but
are licensed to practice law in a different state or possession of the United
States and have engaged in the unauthorized practice of law in Arizona.
Ariz. R. Sup. Ct. 31(a), 46(b), 46(f)(18), 75(a); Ariz. R. Sup. Ct. 42, E.R.
5.5(g), 8.5(a). The Bar is authorized to investigate, prosecute, and obtain
enforceable judgments in the superior court against such individuals.
Ariz. R. Sup. Ct. 75-80.
¶16 Lang contends that the superior court lacked subject matter
jurisdiction because he performed the acts at issue on behalf of clients
outside of Arizona or directed to third parties outside of Arizona. He also
contends that subject matter jurisdiction was lacking because his
representation of J.C. occurred during a period when Lang was living and
working in California on a temporary basis while periodically returning to
his family in Arizona. In short, Lang contends that he did not engage in
the practice of law “in Arizona.” We disagree. When a resident of
Arizona performs legal services while holding himself out to be an
Arizona attorney working from an Arizona office, he engages in the
practice of law in Arizona. See infra ¶ 20. That residents of other states
were affected by Lang’s representations and that other states also may
have jurisdiction over his conduct does not deprive Arizona of
jurisdiction. Cf. Ariz. R. Sup. Ct. 42, E.R. 8.5(a) (“A lawyer admitted to
practice in this jurisdiction is subject to the disciplinary authority of this
jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer
not admitted in this jurisdiction is also subject to the disciplinary authority
of this jurisdiction if the lawyer provides or offers to provide any legal
services in this jurisdiction. A lawyer may be subject to the disciplinary
authority of both this jurisdiction and another jurisdiction for the same
conduct.”).
II. THE SUPERIOR COURT DID NOT ERR BY ENTERING
SUMMARY JUDGMENT FOR THE BAR.
¶17 Lang next contends that summary judgment for the Bar was
inappropriate because genuine issues of material fact existed and because
federal law allows nonlawyers to engage in at least some of the activities
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STATE BAR v. LANG
Opinion of the Court
he undertook for T.M. and S.J. We find no error in the superior court’s
ruling.
¶18 Under Ariz. R. Sup. Ct. 31(a)(2)(B), the “unauthorized
practice of law” includes engaging in the practice of law without
authorization to do so or “using the designations ‘lawyer,’ ‘attorney at
law,’ ‘counselor at law,’ ‘law,’ ‘law office,’ ‘J.D.,’ ‘Esq.,’ or other equivalent
words [when] . . . not authorized to practice law in this state . . . the use of
which is reasonably likely to induce others to believe that the person . . . is
authorized to engage in the practice of law in this state.” Ariz. R. Sup. Ct.
31(b) further provides that “no person shall practice law in this state or
represent in any way that he or she may practice law in this state unless
the person is an active member of the state bar,” and Ariz. R. Sup. Ct. 42,
E.R. 5.5(b), precludes lawyers who are not admitted to practice in Arizona
from “establish[ing] an office or other systematic and continuous presence
in this jurisdiction for the practice of law” or “hold[ing] out to the public
or otherwise represent[ing] that the lawyer is admitted to practice in this
jurisdiction.”
¶19 Here, Lang entered a purported “Attorney-Client
Agreement” with T.M. by which he agreed to provide “attorney services”
as T.M.’s “personal attorney” from an office in Arizona located outside the
reservation. Lang contends that the agreement was protected commercial
speech under the First Amendment. But an attorney’s First Amendment
interest in commercial speech may yield to the state’s interest in
regulating the profession, Gentile v. State Bar of Nev., 501 U.S. 1030, 1073
(1991), and “[t]here is ‘no constitutional value in false statements of fact.’”
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984) (citation omitted).
Arizona’s prohibition against the unauthorized practice of law is not a
broad regulation of speech, but a narrowly tailored set of rules aimed at
conduct by persons not admitted to the Bar. Lang’s speech falls into the
zone of speech that the First Amendment allows the state to regulate – his
speech was nothing more than an attempt to facilitate unlawful conduct,
and he had no First Amendment privilege that could immunize him from
the enforcement of the Arizona Supreme Court rules. See Mont. Supreme
Court Comm’n on Unauthorized Practice of Law v. O’Neil, 147 P.3d 200, 214
(Mont. 2006).
¶20 We further disagree with Lang’s contention that the
representations in the engagement agreement with T.M. were not
reasonably likely to induce his client to believe that he was authorized to
practice law in Arizona. The purported disclaimer states that Lang “is
engaged in international business and law and is a licensed practicing
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STATE BAR v. LANG
Opinion of the Court
attorney in various international for[u]ms . . . and . . . practices in limited
federal jurisdictions and may appear in any state court proceedings with
permission from the court.” Taken as a whole, the agreement clearly
implied that Lang was not a member of the Bar but was otherwise
permitted to practice law in Arizona without significant restrictions. Even
assuming that T.M. was not himself misled to believe that Lang was
authorized to practice law because the agreement stated that Lang “is not
licensed with any state Bar of the United States,” the third parties to
whom Lang held himself out to be an attorney officed in Arizona were not
privy to the disclaimer in Lang’s engagement letter. We agree with the
superior court that even if we were to accept as true Lang’s argument that
he could have negotiated T.M.’s rights with third parties as his boxing
“manager” under 15 U.S.C. §§ 6301 to 6313, the fact that he held himself
out to be an Arizona attorney constituted the unauthorized practice of
law.
¶21 Likewise, even if Lang could have represented S.J. in the
federal employment law matter, he committed the unauthorized practice
of law by falsely representing that he was an attorney practicing in
Arizona. He similarly engaged in the unauthorized practice of law by
holding himself out to be an Arizona attorney when negotiating S.J.’s legal
rights in the real estate dispute. Even if Lang had been lawfully working
under the supervision of a licensed attorney, as he now claims, the
document he authored made no mention of this alleged association and
did not otherwise dispel his false representations about his own
professional status.
¶22 Lang repeated the same false representations in his dealings
with J.C., agreeing under an “Attorney-Client Fee Agreement” to provide
“legal services” to J.C. as a “Managing Attorney” of a law firm in Arizona
and later negotiating J.C.’s legal rights while representing that he was a
“Senior Managing Attorney.”
¶23 The undisputed evidence shows that in his dealings with
and for T.M., S.J., and J.C., Lang repeatedly held himself out to be an
attorney practicing in an Arizona office. Yet Lang was not admitted to the
practice of law by the Arizona Supreme Court. His conduct therefore
constituted the unauthorized practice of law under Ariz. R. Sup. Ct.
31(a)(2)(B)(2), 31(b), and 42, E.R. 5.5(b). The superior court properly
entered summary judgment in the Bar’s favor on Counts 1, 4, and 5.
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STATE BAR v. LANG
Opinion of the Court
III. THE INJUNCTION IS NOT OVERBROAD.
¶24 Lang finally contends that the injunction entered against him
is unconstitutionally overbroad. The injunction provides:
(A) Respondent Randy D. Lang, and any corporate entity
owned, controlled or operated by Respondent, is
immediately and permanently enjoined from
engaging in the practice of law within the State of
Arizona, defined in Rule 31(a)(2)(A), Ariz. R. S[up].
Ct. as:
(1) preparing any document in any medium
intended to affect or secure legal rights for a
specific person or entity;
(2) preparing or expressing legal opinions;
(3) representing another in a judicial, quasi-
judicial, or administrative proceeding, or other
formal dispute resolution process such as
arbitration and mediation;
(4) preparing any document through any medium
for filing in any court, administrative agency or
tribunal for a specific person or entity; or
(5) negotiating legal rights or responsibilities for a
specific person or entity;
(B) Respondent Randy D. Lang, and any corporate entity
owned, controlled or operated by Respondent, is
enjoined from engaging in the unauthorized practice
of law, defined in Rule 31(a)(2)(B) as including, but
not limited to using the designations “lawyer,”
“attorney at law,” “counselor at law,” “law,” “law
office,” “J.D.,” “Esq.,” or other equivalent words by
any person or entity who is not authorized to practice
law in this state . . . , the use of which is reasonably
likely to induce others to believe that the person or
entity is authorized to engage in the practice of law in
this state; and
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STATE BAR v. LANG
Opinion of the Court
(C) Respondent Randy D. Lang, and any corporate entity
owned, controlled or operated by Respondent, is
enjoined from giving the appearance of maintaining a
business address within the state of Arizona, except
within the boundaries of a tribal jurisdiction in which
Respondent is admitted to practice law; and
(D) Respondent Randy D. Lang, and any corporate entity
owned, controlled or operated by Respondent, is
ordered to include on all correspondence, letterhead,
business cards, and other advertising materials the
words “Not admitted to practice law in the State of
Arizona, except as permitted by tribal court
admission to the extent consistent with Arizona law.”
(E) Respondent shall return to all customers in pending
matters affected by this Judgment and Order any
documents or other property to which they are
entitled, including their files.
To the extent that the Respondent’s conduct is
authorized by Respondent’s admission to practice in the San
Carlos Apache Tribal Courts, and is not inconsistent with
Rules 31 and 75 through 80, Ariz. R. Sup. Ct. and UPL
Opinion 10-02, the foregoing injunction is inapplicable.
¶25 Lang first contends that the injunction’s restriction regarding
where he may maintain a law office is unconstitutional and contrary to the
United States Supreme Court’s holding in Sperry v. Florida, 373 U.S. 379(1963). In Sperry, the Court held that a practitioner registered to practice
before the United States Patent Office, but not licensed to practice law by
any state, should not have been enjoined from engaging in his patent
practice from Florida. Id. at 381, 404. Relying on federal supremacy, see id.
at 383-85, the Court explained that “the State maintains control over the
practice of law within its borders except to the limited extent necessary for
the accomplishment of the federal objectives [of the United States Patent
Office]” and that “it is entirely reasonable for a practitioner to hold
himself out as qualified to perform his specialized work, so long as he
does not misrepresent the scope of his license.” Id. at 402 & n.47.
¶26 The injunction against Lang is not inconsistent with Sperry.
The San Carlos Apache Tribe is a dependent sovereign nation whose
authority to regulate its courts does not enjoy supremacy over the Arizona
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Opinion of the Court
Supreme Court’s authority to regulate the practice of law outside the
Tribe’s reservation. See O’Neil, 147 P.3d at 216. Ariz. R. Sup. Ct. 42, E.R.
5.5(b)(1), specifically provides that “[a] lawyer who is not admitted to
practice in [Arizona] shall not . . . establish an office or other systematic
and continuous presence in this jurisdiction for the practice of law.” We
also agree with the Bar’s assertion, reflected in its UPL Advisory Opinion
10-02, that an attorney licensed to practice law in jurisdictions other than
Arizona may not regularly practice the law of those jurisdictions from a
place of business in Arizona even if he provides full disclosure to clients.
UPL Advisory Opinion 10-02 (2010), available at
http://www.azbar.org/media/75280/upl10-02.pdf. As the Advisory
Opinion observes, the Arizona Supreme Court rules do not limit the
“practice of law” to Arizona law. Id. at 4. And though Ariz. R. Sup. 42,
E.R. 5.5(d), allows a non-Arizona lawyer to practice from Arizona as
allowed by federal law (consistent with Sperry), this exception does not
authorize the lawyer to practice the law of other states or sovereign
nations from Arizona. Id. at 5. The injunction properly restricts Lang’s
practice to the tribal jurisdiction in which he is admitted. Contrary to his
contentions, the injunction neither restricts his practice before the tribal
court to clients who live on the reservation nor does it require him to
reside on the reservation. And the injunction does not infringe upon the
Tribe’s authority to decide what Lang can and cannot do before the tribal
court. We express no opinion on the scope of practice in which Lang
could properly engage from an office properly disclosed as located on the
reservation.
¶27 Lang next contends that the injunction unconstitutionally
prohibits him from referring to himself as a “J.D.” or “attorney” despite
his law school education and tribal bar admission, and discriminatorily
requires him to disclaim Arizona Bar membership in his letterhead and
advertising material. As written, these restrictions are proper under the
Arizona Supreme Court’s rules. Consistent with Ariz. R. Sup. Ct.
31(a)(2)(B)(2), the injunction does not prohibit Lang from referring to his
law degree, education, or tribal court admission so long as the reference
does not reasonably imply that he is admitted to practice law in Arizona.
This limitation is constitutional. See Bates v. State Bar of Ariz., 433 U.S. 350,
383-84 (1977). Further, the requirement that Lang expressly disclaim
admission in Arizona in his letterhead and advertising material is
reasonably tailored to prevent client confusion while still recognizing
Lang’s actual qualifications. We also reject Lang’s contention that the
injunction should anticipate his future admission to other tribal courts.
Should Lang actually become admitted in additional jurisdictions, he may
at that time ask the superior court to modify the injunction. See Ariz. R.
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Civ. P. 65(c); see also Town of Tortolita v. Napolitano, 199 Ariz. 556, 560, ¶ 12,
20 P.3d 599, 603 (App. 2001); Nordin v. Kaldenbaugh, 7 Ariz. App. 9, 15, 435
P.2d 740, 746 (1967).
CONCLUSION
¶28 For the reasons set forth above, we affirm the judgment
against Lang in its entirety.
:MJT
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