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Romley v. Arpaio2/19/2002
t found that Lebowitz was not counsel for the Sheriff because he was hired as an administrative employee. Therefore, the court dismissed count I as moot. In addressing count II, the court ruled that a non-employee party to a Commission proceeding may not appear through a non-lawyer representative. The court thus declared that as an administrative employee, Lebowitz could not represent the Sheriff in Commission proceedings. Finally, the court dismissed count III, explaining that no dispute existed that gave rise to an actual controversy ripe for declaratory judgment because the Board retains authority over county litigation, including approval of private counsel, and there was no evidence that the Board had been requested to address the process of specific attorney assignment. This appeal by the Sheriff followed.
STANDARD OF REVIEW
We review de novo the trial court's grant of summary judgment, viewing the evidence in the light most favorable to the Sheriff as the non-prevailing party. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). Further, we are not bound by that court's interpretation of pertinent statutes or procedural rules. Byers-Watts v. Parker, 199 Ariz. 466, 468, 7, 18 P.3d 1265, 1267 (App. 2001); Blum v. State, 171 Ariz. 201, 204, 829 P.2d 1247, 1250 (App. 1992).
DISCUSSION
I. Effect of Lebowitz's status as an administrative employee
Our state constitution grants the Arizona Supreme Court the exclusive authority to decide who may engage in the practice of law. Hunt v. Maricopa County Employees' Merit Sys. Comm'n, 127 Ariz. 259, 261-62, 619 P.2d 1036, 1038-39 (1980) (Under Article III of the Arizona Constitution, "the practice of law is a matter exclusively within the authority of the Judiciary. The determination of who shall practice law in Arizona and under what condition is a function placed by the state constitution in this court."). The Sheriff acknowledges that representation of an agency official in a Commission appeal is the "practice of law," and, therefore, only a licensed attorney can represent him in such appeals. See State Bar of Ariz. v. Ariz. Land Title & Trust Co., 90 Ariz. 76, 95, 366 P.2d 1, 14 (1961) (holding representation of another in administrative hearing constitutes practice of law). See also Ariz. R. Sup. Ct. 31(a)(3) (prohibiting practice of law by anyone not licensed as attorney in Arizona or falling within a listed exception). Cf. Ariz. R. Sup. Ct. 31(a)(4)(B) (authorizing employee to designate non-attorney to represent employee before board hearing or quasi-judicial hearing dealing with personnel matters if no fee charged by chosen representative).
The Sheriff argues, however, that the trial court erred in ruling that Lebowitz, due to his status as an "administrative employee," cannot lawfully represent the Sheriff before the Commission. The trial court reasoned that if Lebowitz appears before the Commission, he would do so as a lay representative rather than as an attorney in light of his employment designation. The Sheriff contends that Lebowitz would not lose his status as an attorney simply because he functions as an administrative employee. The County Attorney urges us to reject this argument and affirm because the Sheriff hired Lebowitz to perform administrative functions, and, alternatively, the Sheriff invited any error in the court's ruling by asserting Lebowitz's status as a non-legal administrative employee.
We agree with the Sheriff that the trial court erred in its reasoning. A lawyer takes his or her license along when engaging in any type of activity, In re Pappas, 159 Ariz. 516, 521-22, 768 P.2d 11
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