Bold. Innovative. Visionary. At a time when many courts are losing the battle to provide access to justice, especially in low-income communities, the Arizona Supreme Court has brought fresh ideas to bridge the justice gap.

Vice Chief Justice John Lopez, at the invitation of the ABA Crossroads Caucus, discussed innovations his court has recently put in place in a conversation with moderator Mark Martin, dean of High Point University School of Law at the ABA Midyear Meeting in Phoenix in February.

As reported by the Legal Services Corporation in its most recent Justice Gap Study in 2022, low-income Americans do not get any or enough legal help for 92% of their substantive civil legal problems. To address this issue, Lopez and his colleagues have focused on improving access to legal services by lowering costs and increasing options. For lower income citizens, the court approved several programs, including the Legal Paraprofessional Program, the Lawyer Apprentice Program, the Legal Advocate Program and the Government Law Admission Program.

The Legal Paraprofessional Program, to highlight a very successful program, has been in operation since early 2021. It grants a license that allows nonlawyers to offer limited legal services, including legal advice; drafting and filing legal documents, opinions and strategies; and representing clients in court. The first licenses were granted in November 2021, and Arizona has 65 licensed LPs. The program improves access to justice by allowing trained nonlawyers to represent clients in criminal, family, civil, administrative and juvenile law matters. The University of Arizona and Arizona State University offer a Master of Legal Studies that prepares students for the legal paraprofessional licensure exam.

To address the problem of Arizona’s “legal deserts,” a term coined by the ABA to describe counties with few or no lawyers (i.e., fewer than one lawyer per 1,000 residents), the Arizona Supreme Court approved a Lawyer Apprentice Program. The program encourages aspiring lawyers to stay in Arizona, creates a pathway to licensure for law graduates with lower bar scores and increases the number of lawyers in the state. In a state that ranks 49th of 50 states in lawyers per capita, such a program is a necessity, but it’s a very disciplined necessity: Applicants must (1) be graduates of an ABA-accredited law school (2) score 260-269 on the Uniform Bar Exam (3) and commit to practice under the supervision of a qualified Arizona attorney for at least two years in rural Arizona or a public law practice.

More controversial are the Arizona Supreme Court-approved “Alternative Business Structures.” The ABS program allows nonlawyers to partner with lawyers in businesses that provide legal services. The program was created to encourage innovation in legal services and make them more affordable. ABS are subject to the Rules of the Arizona Supreme Court regulating the practice of law, including the requirement that the ABS employ a member of the Arizona Bar who supervises the practice of law. While such arrangements are common in the United Kingdom and Australia, they are actively debated in the U.S.

When Big Four accounting firm KPMG was approved on Feb. 27 to own a law firm under the ABS program, some skeptics asked whether such a step would actually bridge the justice gap or lower costs for lower-income citizens. Lopez acknowledges that some have also raised concerns that the “one-stop shop” model may put traditional firms out of business.

As part of the Arizona Judiciary’s Five-Year Plan, Chief Justice Ann A. Scott Timmer, a 2021 ABA Journal Legal Rebel, has made public trust and confidence in the judiciary a foundational goal. Lopez strongly supports this goal, and the court has put in place several initiatives to address the problem.

He told his audience: “Much of the public’s distrust in our courts is driven by inaccurate media coverage of our cases. Too often, media coverage centers on a case result and often fails to accurately identify the issue, if at all. Inaccurate framing of judicial decisions is then used to drive a narrative that judicial opinions are invariably political decisions. To that end, too many media reports on judicial opinions are limited to the party affiliation of the judge, the case result and its political significance or palatability. This coverage encourages public cynicism and distrust of courts.”

To counter objectively inaccurate characterizations of judicial opinions, the Arizona Supreme Court recently adopted a practice of releasing a brief summary of the judicial opinion that identifies the issues and sets out the reasoning and the decision in the case. Lopez observed that the initial results seem to be positive, noting that coverage of judicial decisions has been more accurate. He said the purpose and effect is not to diminish critical reporting of decisions, but to increase the likelihood that the criticisms and coverage accurately reflect the actual issues, reasoning and conclusions in the case.

Lopez’s final topic was retention elections. Arizona adopted a merit selection system in 1974 that applies to Arizona’s appellate judges and trial court judges in Arizona’s four most populous counties, where a nonpartisan commission of lawyers and citizens investigates and evaluates candidates for judicial positions. The commission then submits the names of the most highly qualified applicants to the governor, who makes the appointment from that list.

Once appointed, judges are subject to retention through regularly scheduled retention elections, by which a majority of votes in favor of a judge results in retention for another term. During judges’ terms, beginning in 1992, a commission of citizens and lawyers, known as “Judicial Performance Review,” assessed judges’ performances and issued recommendations to the voters prior to an election.

From 1974 to 2020, no endorsed judge had ever been removed by voters. In fact, most judges recommended for removal by JPR were retained by voters. Moreover, during those nearly 50 years, only three judges were removed by voters in retention elections; all were embroiled in legal scandal or were otherwise deemed unfit by the JPR Commission.

But, Lopez said, “Something began to change about Arizona’s retention elections in 2020. For the first time, a major political party targeted judges for nonretention. All were retained. But in 2022, voters failed to retain three Maricopa County Superior Court judges. In other words, as many judges were removed by voters in one election as had been removed over the previous 48 years. Notably, two of the three judges had been recommended for retention by the JPR Commission—a first in the history of Arizona’s merit selection system. One of the judges was targeted not for his judicial performance, but rather for his prior associations and his work as an assistant A.G. in Arizona.”

In 2024, the merit selection system, including the retention election, became a major political issue. One side of the partisan/ideological divide cited an unpopular abortion decision, while the other side of the divide expressed dissatisfaction with the court’s election decisions. These political forces culminated in two primary events: (1) a significant campaign was marshaled to remove two members of the Arizona Supreme Court (2) and Proposition 137 was placed on the ballot to eliminate routine retention election for judges unless they committed various crimes, filed personal bankruptcy or were not recommended for retention by JPR. This proposition was rejected by nearly 80% of voters.

Lopez concluded his presentation by questioning the wisdom of politicizing the merit selection process. He quoted the late U.S. Supreme Court Justice Sandra Day O’Connor who called the prospect of jettisoning the merit selection system “a great step backwards.”

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Jo Ann Engelhardt is a member of the ABA Board of Governors representing District 8, a member of the board of the American Bar Foundation and a founding member of the ABA Crossroads Caucus.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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3. BigLaw attorneys who are ‘frequent practitioners’…

Civil Procedure

BigLaw attorneys who are ‘frequent practitioners’ in federal district can’t be admitted pro hac vice, judge says

By Debra Cassens Weiss

March 5, 2025, 3:45 pm CST

Two Baker & Hostetler lawyers won’t be able to represent a compounding pharmacy in a lawsuit against the U.S. Food and Drug Administration, at least for now, after a federal judge in the Northern District of Texas denied their application to appear pro hac vice.

Partner Andrew M. Grossman and associate Marc N. Wagner cannot be admitted pro hac vice because they are “frequent practitioners” in cases filed in the Northern District of Texas, said U.S. District Judge Mark T. Pittman of the Northern District of Texas in a March 3 order.

Law360 covered the decision, noting that pro hac vice motions “are common and usually regarded as an afterthought. They are rarely denied.”

A pro hac vice admission means that a lawyer has been admitted to practice in a jurisdiction in only one particular case, Pittman said. In the past year, however, Grossman submitted three such applications, while Wagner submitted four of them in the Northern District of Texas, including the applications in the case before Pittman.

The lawyers, Pittman said, are encouraged “to file applications to be admitted to practice in this court, and [this court] would happily welcome them as members of the bar.”

Grossman is licensed in Washington, D.C., and admitted to practice before nearly every federal appeals court. Wagner is licensed to practice in Pennsylvania and Washington, D.C.

Wagner and Grossman did not immediately respond to an ABA Journal email seeking comment. They are among six Baker & Hostetler lawyers who signed the Feb. 24 suit and among four who planned to seek pro hac vice admission in the case.

The suit challenges an FDA decision to remove the weight loss drug semaglutide from a shortage list, which meant that compounding pharmacies were no longer allowed to help satisfy demand. The plaintiffs in the suit are a compounding pharmacy and a trade association that represents compounding facilities.

Pittman appears to be a stickler for the rules. He previously dismissed a suit because of a missed deadline to file a certificate of interested persons and sanctioned two lawyers in a different suit for submitting declarations instead of notarized affidavits as he had directed.

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3. ‘Intriguing point’ in Trump SCOTUS brief…

Constitutional Law

‘Intriguing point’ in Trump SCOTUS brief could mean his vice president would replace him after an election win

By Debra Cassens Weiss

January 4, 2024, 11:28 am CST

In U.S. Supreme Court briefs seeking ballot access, former President Donald Trump and his former U.S. solicitor general are making an argument that could lead to a vice presidential candidate becoming president, according to Jeannie Suk Gersen, a Harvard Law School professor.

Trump’s argument is in his cert petition, filed Wednesday, which asks the Supreme Court to overturn a Colorado Supreme Court ruling that bans him from the primary ballot under Section 3 of the 14th Amendment. The provision bars people from holding U.S. office if they engaged in insurrection or rebellion after taking an oath “to support the Constitution of the United States.”

Trump’s focus on the disqualification clause in Section 3 raises an “intriguing point,” according to Gersen’s Daily Comment article for the New Yorker. At issue is a sentence in Section 3 that reads, “But Congress may by a vote of two-thirds of each House, remove such disability.”

According to Gersen, Trump’s argument is that the clause is about holding office, and it doesn’t prevent anyone, even an insurrectionist, from running or being elected to office because it is always possible that Congress will vote to allow the person to hold office.

The argument is “the centerpiece” of an amicus brief also filed Wednesday on behalf of the National Republican Senatorial Committee and its chair, Gersen said.

Partly written by Noel Francisco, former solicitor general in the Trump administration, the brief argues that, whether or not Section 3 applies, “it unquestionably does not allow Colorado to exclude President Trump from the ballot.” Section 3 bars disqualified people from serving in office but not from running, the brief argues.

The Colorado Supreme Court “effectively usurped Congress’ sole authority to decide when, if at all, to remove any Section 3 disqualification,” the brief argues.

That means that Trump can still run and seek removal of the disqualification, if there is one. What happens after a win and before a qualification vote is governed by the 20th Amendment, which says the vice president must serve as acting president until the president is qualified, the brief says.

“But, of course, there is no guarantee that if Trump is elected in November, Congress will lift his disqualification,” Gersen wrote, “especially because Congress is unlikely to reach the high bar of two-thirds of each house that is needed to do so. That implies that voters who believe that Trump is disqualified as an insurrectionist have the ability to elect him expecting that his running mate will be president, possibly throughout the four-year term.”

See also:

“GOP can put Trump on primary ballot, even if he is ineligible for office, top Minnesota court rules”

“Why Colorado judge kept Trump on ballot despite finding he engaged in insurrection”