State Bar v. Berry

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

THE STATE BAR OF ARIZONA, Plaintiff/Appellee,

v.

RICHARD S. BERRY, Defendant/Appellant.

No. 1 CA-CV 18-0661
FILED 1-16-2020

Appeal from the Superior Court in Maricopa County
No. CV2017-000456
The Honorable Joseph C. Welty, Judge

AFFIRMED

COUNSEL

State Bar of Arizona, Phoenix
By James D. Lee
Counsel for Plaintiff/Appellee

Richard S. Berry, Tempe
Defendant/Appellant

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.
 STATE BAR v. BERRY
Decision of the Court

J O N E S, Judge:

¶1 Richard Berry appeals the superior court’s judgment finding
he engaged in the unauthorized practice of law, as defined by Arizona Rule
of the Supreme Court (Rule) 31, and enjoining him from further
unauthorized conduct. For the following reasons, we affirm.

LEGAL BACKGROUND

¶2 The power to regulate the practice of law in Arizona is vested
exclusively in our supreme court, whose authority extends over those
admitted to the Arizona bar as well as non-lawyers and disbarred attorneys.
See In re Creasy, 198 Ariz. 539, 541, ¶¶ 7-8 (2000); Sobol v. Alarcon, 212 Ariz.
315, 319, ¶¶ 18-19 (App. 2006). In a lawful exercise of this power, “the
supreme court has promulgated rules defining and describing both the
practice of law and the unauthorized practice of law.” Sobol, 212 Ariz. at
319, ¶ 19; see generally Ariz. R. Sup. Ct. 31,1 75. These rules identify the
activities that may only be performed by a licensed attorney and seek to
“protect the public from the intolerable evils which are brought upon
people by those who assume to practice law without having the proper
qualifications.” Morley v. J. Pagel Realty & Ins., 27 Ariz. App. 62, 65 (1976)
(quoting Gardner v. Conway, 48 N.W.2d 788, 794 (Minn. 1951)).

¶3 As such, under Arizona law, subject to certain exemptions not
applicable here, “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.” Ariz. R. Sup. Ct. 31(b); see also Ariz. R. Sup.
Ct. 31(d) (identifying exemptions). Rule 31 specifically prohibits a non-
active member of the state bar from using designations such as “lawyer” or
“counselor at law,” Ariz. R. Sup. Ct. 31(a)(2)(B) (defining the unauthorized
practice of law), and “providing legal advice or services to or for another”
by:

(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;

1 Absent material changes from the relevant date, we cite the current
version of rules and statutes.

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(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.

Ariz. R. Sup. Ct. 31(a)(2)(A) (defining the practice of law).

FACTS AND PROCEDURAL HISTORY

¶4 In January 2017, forty years after Berry was disbarred by our
supreme court, the State Bar of Arizona (State Bar) filed a complaint against
Berry alleging six counts of the unauthorized practice of law.

¶5 After a two-day bench trial, the superior court found clear and
convincing evidence that Berry engaged in the unauthorized practice of law
on four occasions.2 Specifically, the court found Berry, while affiliated with
a paralegal firm called “Why Pay a Lawyer?,” had: (1) prepared, signed,
and mailed a demand letter on behalf of another person that included legal
analysis the person did not specifically direct; (2) represented himself as a
lawyer to a second person; drafted a demand letter for the second person
that included legal analysis the person did not specifically direct; and
prepared a breach of contract complaint for the second person that was later
filed in superior court; (3) selected or prepared various bankruptcy
documents for a third person that required legal analysis and were
ultimately filed in bankruptcy court; and (4) selected or prepared legal
documents for a fourth person that addressed legal issues related to a
specific landlord-tenant dispute.

¶6 The superior court determined Berry’s conduct was
sanctionable, permanently enjoined Berry from engaging in the
unauthorized practice of law in Arizona, and ordered Berry to pay
restitution. See Ariz. R. Sup. Ct. 76(a) (describing the grounds for sanctions,
including “[a]ny act found to constitute the unauthorized practice of law
pursuant to Rule 31”), (b) (describing the available sanctions to include

2 The State Bar voluntarily dismissed one count; the superior court
dismissed another.

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imposition of an injunction and restitution). Berry timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Sufficiency of the Evidence

¶7 Berry first argues the State Bar failed to prove by clear and
convincing evidence that he engaged in the unauthorized practice of law as
defined by Rule 31.3 However, when an appellant “contend[s] on appeal
that a judgment, finding or conclusion[] is unsupported by the evidence or
is contrary to the evidence, the appellant must include in the record
transcripts of all proceedings containing evidence relevant to that
judgment, finding or conclusion.” ARCAP 11(c)(1)(B); see also Myrick v.
Maloney, 235 Ariz. 491, 495, ¶ 11 (App. 2014) (“An appellant also has an
obligation to provide transcripts and other documents necessary to
consider the issues raised on appeal.”) (citing Baker v. Baker, 183 Ariz. 70, 73
(App. 1995)). “We presume the items not included in the appellate record
support a trial court’s ruling.” Myrick, 235 Ariz. at 495, ¶ 11 (citing Baker,
183 Ariz. at 73).

¶8 Berry did not provide transcripts of the two-day bench trial;
nor does his appellate case management statement indicate compliance
with ARCAP 11(c)(1)-(3) (describing the appellant’s duty to order
transcripts). Berry has thus waived any argument regarding the sufficiency
of the evidence to support the superior court’s findings. See Boltz &
Odegaard v. Hohn, 148 Ariz. 361, 366 (App. 1985) (“Where no transcript of
evidence is made part of the record on appeal, a reviewing court will not

3 Berry presents several arguments not raised before the superior
court. However, “matters not raised below . . . will not be considered on
appeal.” Murphy v. Town of Chino Valley, 163 Ariz. 571, 578 (App. 1989)
(citing Norcor of Am. v. S. Ariz. Int’l Livestock Ass’n, 122 Ariz. 542, 544-45
(App. 1979)); see also Palmer v. City of Phx., 242 Ariz. 158, 165, ¶ 26 (App.
2017) (“[A] party must timely present his legal theories to the trial court so
as to give it an opportunity to rule properly.”) (quoting Payne v. Payne, 12
Ariz. App. 434, 435 (1970)). And although Berry suggests his actions could
have rightfully been undertaken by a certified legal document preparer
(CLDP), see Ariz. R. Sup. Ct. 31(d)(24) (recognizing that a CLDP may
perform services in compliance with Part 7, Chapter 2, of the Arizona Code
of Judicial Administration), Berry admits he is not a CLDP, and the court
found he was not a CLDP at the relevant time.

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question the sufficiency of evidence to sustain the ruling.”) (citing Riley v.
Jones, 6 Ariz. App. 120, 122 (1967)).

II. Constitutionality

¶9 Berry next challenges the constitutionality of Rule 31. We
review constitutional challenges de novo and will presume constitutionality
unless the challenger convinces us otherwise beyond a reasonable doubt.
See 3613 Ltd. v. Dep’t of Liquor Licenses & Control, 194 Ariz. 178, 182, ¶ 17
(App. 1999) (citations omitted).

¶10 Berry contends that Rule 31’s provisions governing the
practice of law and unauthorized practice of law are unconstitutionally
overbroad and vague because the rule identifies several exemptions. See
Ariz. R. Sup. Ct. 31(d). But none of those exemptions apply to his conduct.
Because Berry engaged in the type of conduct Rule 31 expressly prohibits,
he is precluded from challenging Rule 31 on the grounds that it is
unconstitutionally overbroad or vague.4 See Martin, 195 Ariz. at 316, ¶ 77
(collecting cases); Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (“[E]ven if
the outermost boundaries of [a statute challenged for vagueness] may be
imprecise, any such uncertainty has little relevance . . . where appellants’
conduct falls squarely within the ‘hard core’ of the statute’s proscriptions.”)
(collecting cases).

III. Antitrust Laws

¶11 Finally, relying upon North Carolina State Board of Dental
Examiners v. Federal Trade Commission (N.C. Dental), 135 S. Ct. 1101 (2015),
Berry contends enforcement of Rule 31 violates federal antitrust law
because the members of the State Bar who regulate and enforce the rules
are “active participants in the same profession as those [they] govern[].”
See Ariz. R. Sup. Ct. 32(c) (outlining parameters for membership in the State

4 An exception exists where the law’s “potential deterrent effect on
First Amendment activities is ‘both real and substantial.’” Martin v.
Reinstein, 195 Ariz. 293, 316, ¶ 78 (App. 1999) (quoting Maricopa Cty. Juv.
Action No. JT9065297, 181 Ariz. 69, 73 (App. 1994)). Although Berry
contends Rule 31 “outlaw[s]” commercial speech because it bans lawyer
advertising, nothing in the text of the rule supports such an interpretation.
Nor does he cite any authority suggesting he has a constitutional right to
give legal advice in contravention of our supreme court rules prohibiting
disbarred attorneys from practicing law.

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Bar).5 We review legal questions de novo. McNamara v. Citizens Protecting
Tax Payers, 236 Ariz. 192, 194, ¶ 5 (App. 2014) (citing Lincoln v. Holt, 215
Ariz. 21, 23, ¶ 4 (App. 2007)).

¶12 In N.C. Dental, the Federal Trade Commission (FTC) filed an
administrative complaint alleging the efforts of the North Carolina State
Board of Dental Examiners (the Board) to exclude non-dentists from the
teeth-whitening services market “constituted an anticompetitive and unfair
method of competition under the [FTC] Act.” 135 S. Ct. at 1108-09. The
FTC rejected the Board’s claim that it was immune from antitrust laws. Id.
at 1109. In affirming, the U.S. Supreme Court recognized that antitrust laws
“confer immunity on anticompetitive conduct by the [s]tates when acting
in their sovereign capacity.” Id. at 1110 (citing Parker v. Brown, 317 U.S. 341,
350-51 (1943)). When a state delegates control over a market to a non-
sovereign actor that is controlled by active market participants, it “enjoys
Parker immunity only if . . . the challenged restraint [is] clearly articulated
and affirmatively expressed as state policy, and . . . the policy [is] actively
supervised by the [s]tate.” Id. (quoting FTC v. Phoebe Putney Health Sys.,
Inc., 568 U.S. 216, 225 (2013)); see also Goldfarb v. Va. State Bar, 421 U.S. 773,
788 (1975) (recognizing that where an anticompetitive program gets “its
authority and its efficacy from the legislative command of the state,” there
is no antitrust violation because the law “was intended to regulate private
practices and not to prohibit a [s]tate from imposing a restraint as an act of
government”) (citing Parker, 317 U.S. at 350-52, and Olsen v. Smith, 195 U.S.
332, 344-45 (1904)).

¶13 Berry contends Arizona’s regulation of the practice of law is
analogous to North Carolina’s system of regulating dental practices. We
disagree.

¶14 The Board in N.C. Dental admitted it was not actively
supervised by the state and therefore, without doubt, ineligible for

5 In conjunction with this argument, Berry argues Rule 31 creates an
illegal monopoly that only “promote[s] lawyer income and eliminate[s]
competition [between lawyers and nonlawyers].” See 15 U.S.C. § 2
(designating the monopolization of trade or commerce as a felony offense);
see also A.R.S. § 44-1403. Berry does not, however, suggest the State Bar
controls pricing for legal services or that he, as a disbarred attorney, is a
lawful competitor in the market for legal services. See Pasco Indus., Inc. v.
Talco Recycling, Inc., 195 Ariz. 50, 57-61, ¶¶ 22-49 (App. 1998) (explaining
how the elements of a monopolization claim may be proven). Therefore,
we need not and do not address the argument.

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immunity. Id. at 1116. The U.S. Supreme Court nonetheless identified “a
few constant requirements of active supervision,” namely:

The supervisor must review the substance of the
anticompetitive decision, not merely the procedures followed
to produce it; the supervisor must have the power to veto or
modify particular decisions to ensure they accord with state
policy; and the “mere potential for state supervision is not an
adequate substitute for a decision by the [s]tate.” Further, the
state supervisor may not itself be an active market participant.

Id. at 1116-17 (citing Patrick v. Burget, 486 U.S. 94, 102-03 (1988), and then
quoting FTC v. Ticor Title Ins., 504 U.S. 621, 638 (1992)). “In general, the
adequacy of supervision . . . will depend on all the circumstances of the
case.” Id.

¶15 Examining those factors here, we find the State Bar
adequately supervised by our supreme court. Indeed, the U.S. Supreme
Court has previously recognized the Arizona Supreme Court’s supervisory
authority over the State Bar, noting that while “the State Bar plays a part in
the enforcement of the rules, its role is completely defined by the [Arizona
Supreme] [C]ourt; the [State Bar] acts as the agent of the court under its
continuous supervision.” Bates v. State Bar of Ariz., 433 U.S. 350, 361 (1977)
(holding an antitrust claim against the State Bar was precluded by Parker
immunity). Our supreme court creates the rules and maintains the
authority to veto or modify decisions of the State Bar. See id. at 359-60
(“[T]he challenged [disciplinary rule] is the affirmative command of the
Arizona Supreme Court . . . . That court is the ultimate body wielding the
State’s power over the practice of law, . . . adopt[s] the rules, and . . . is the
ultimate trier of fact and law in the enforcement process.”). The Arizona
Rules of the Supreme Court govern both the substantive requirements for
admission and continued membership in the State Bar and the attendant
procedures. See generally Ariz. R. Sup. Ct. 32 to 45. Finally, the Arizona
Supreme Court is not an active market participant; by definition, judicial
members of the State Bar are “not engaged in the practice of law.” Ariz. R.
Sup. Ct. 32(c)(6). Sufficient state supervision exists here, and antitrust laws
do not prohibit the State Bar from enforcing our supreme court’s
regulations governing the practice of law and unauthorized practice of law.

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CONCLUSION

¶16 The superior court’s judgment is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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