The State Bar provides printed brochures as a public service. They cover popular topics such as divorce, guardianship and conservatorship, and wills and trusts. If you're looking for a lawyer, or deciding if you even need one, there are brochures that will help you in the decision-making process.
You can learn about these, as well as other legal topics, by clicking on the links in the left-hand column of this page.
Hiring a State Bar Board-Certified Legal Specialist means you can count on these Specialists to give you superior service in the specific area of law for which you require help.
To qualify for certification, attorneys must first prove they have in-depth experience in that area of law and dedicate their practice to it, have the respect of their peers, and submit to advanced level testing. Only once they have passed these very high standards, can they become certified as a Specialist.
You can find these lawyers, who the Arizona Board of Legal Specialization has identified as having superior knowledge, skill, integrity, professionalism, and competence to better serve you, here:
- Bankruptcy Specialists
- Criminal Specialists
- Estate and Trust Specialists
- Family Law Specialists
- Personal Injury and Wrongful Death Specialists
- Real Estate Specialists
- Tax Law Specialists
- Workers' Compensation Specialists
- Administrative Law - (A new specialty eff. 4/2020. Inaugural Administrative Law Specialists will be certified in the spring of 2021. Applications are being accepted)
In order to achieve this distinction, Specialists are held to very high standards, and generally must:
- Be licensed to practice law for at least 5 years (7 years for family, criminal and real estate certification)
- Be licensed in Arizona for at least 2 or 3 years, depending on the area of practice
- Devote the equivalent of 50% to 70% of a full-time law practice in the specialty field, and handle a specific number of cases in the specialty field
- Demonstrate integrity, professionalism and a high degree of competence in the specialty field
- Receive favorable peer review from attorneys, judges and other professionals in the specialty field
- Pass a written examination in their area of specialty
How many attorneys are currently certified?
Out of a total State Bar membership of more than 20,000 active members, approximately 500 Arizona attorneys are Board certified.
How long does an attorney remain certified?
After 5 years, to remain certified, an attorney must demonstrate they continue to meet the high standards for certification, including substantial involvement in the specialty field on an ongoing basis, no history of disciplinary action, continuing advanced and specialized legal education, and receive outstanding marks on peer reviews from Judges, Attorneys, and other professionals.
How do you know if an attorney is certified?
A certified attorney is entitled to:
- Indicate certification on business cards, letterhead, and in email
- Indicate certification digitally, including on websites & via social media
- Indicate certification in advertising, both print and broadcast
- Display the certificate awarded by the Board of Legal Specialization
- List the certification in legal directories and listings
Trying to find a Board Certified Specialist?
For a listing of certified specialists, use the links above, or click here to reach our advanced search page. Under "Get even more specific" click on the box that says "Board Certified Specialist" and choose the area of law you need and hit search. You can also call 602.340.7239.
This guide has some quick and easy steps for finding the legal help you need.
Do You Need a Lawyer?
There are a number of online resources now available through the Arizona Supreme Court (family law), the Arizona Foundation for Legal Services & Education (many types of law), the Arizona Attorney General’s Office (consumer law and identity theft), the Superior Court self-service centers (family law and others), and the Federal Trade Commission (identity theft) and the US Postal Service. Many times your questions can be answered there.
Consider how you hope to resolve the problem. Knowing whether you need a lawyer and knowing what you hope to achieve by contacting a lawyer can make your search for a solution easier.
Here are some tips to help you in your search for a solution:
Where do I look for a lawyer?
All lawyers who are members of the State Bar of Arizona are listed on the State Bar’s website. An easy way to find a lawyer is to go to www.azbar.org and click on “Find a Lawyer.”
You can narrow your search by searching for a lawyer in a certain city, or a lawyer who works in a certain area of law.
Both the Pima County Bar Association and the Maricopa County Bar Association offer a lawyer referral program. The lawyer referral programs provide an opportunity to consult with a lawyer for 30 minutes for a modest fee.
What should I find out about a lawyer?
The Find a Lawyer tool on the State Bar of Arizona website will provide you with important information. Here are some things to keep in mind as your search for the right lawyer for you.
- Practice Area: The types of cases that the lawyer takes.
- Location of Office: Is this location close to you?
- Discipline Record: If a lawyer has been disciplined by the Arizona Supreme Court, you will be able to view the record online or call the State Bar to review the file.
- Standing: Whether the lawyer is an active member of the State Bar of Arizona. Only active members can practice law.
- Licensed Area: Locations where the lawyer is licensed to practice law
What else can I do to solve my problem?
Some problems can be better solved without going to court. Alternative Dispute Resolution options such as mediation and arbitration may be a better alternative. The superior courts often require or offer it for family law matters and perhaps others.
What should I do if I'm on active duty?
Within the continental United States, all active duty service members and their dependents can obtain free legal advice and assistance on base or on post from the Legal Assistance department. Connect to websites at the bases or at the base finder website.
First Meeting with the Lawyer
You have researched a lawyer and found someone who you think may be able to help. Your first step might be to have a 30-minute meeting with the lawyer, in person or on the phone.
I only have 30 minutes with a lawyer, what should I bring?
When you only have a short time to talk with a lawyer, getting paperwork and information together before meeting with the lawyer can be very helpful. Here are some things to have ready when you speak with a lawyer:
- Paperwork: Find and bring any paperwork for your legal issue. For example, if you are concerned about debt collection, you may want to have your credit card bills with you.
- Goals: What do you hope to get out of the case?
- Issue: If you can only have one problem solved in 30 minutes, what problem would you pick? Is there one specific problem that caused other problems to happen?
What should I ask the lawyer?
When you have a short time to talk with a lawyer, you may want to find out whether you have a problem that can be solved through the courts and whether you need a lawyer to help you. Here are some questions to keep in mind:
- Do you think I need a lawyer, or can I handle this myself?
- Is there a legal solution to my case?
- What are the strengths and weaknesses of my case?
- What are the possible outcomes of my case?
- For my legal issue, is there a deadline when I need to file a case in court?
- How long will it take to resolve my case?
- How much experience do you have handling cases like mine?
Hiring a Lawyer
You're ready to pick a lawyer to help you. Before you hire the lawyer, you may want to find out some other information.
How much will my case cost?
The way lawyers charge for their work can change depending on the type of case. Once you understand how much your case may cost, you can better decide whether you want to start the case. Here are some questions to ask your lawyer about fees.
- What kind of fees do you charge in cases like mine?
- If the lawyer charges a certain amount per hour (hourly fee):
- How much do you charge per hour?
- How many hours do you think my case will take?
- What will happen if my case takes more or less time than you thought?
- If the lawyer charges a total fee (flat or fixed fee):
- How much time do cases like mine typically take?
- What happens if my case settles?
- What happens if my case takes more time than you thought?
- If the lawyer gets a percentage of the amount if you win your case (contingent fee):
- How much money do you think I may win?
- How do you calculate your percentage?
- What percentage do most lawyers charge for this type of case?
- What happens if my case settles?
- What can I do to lower my costs?
How will my case work?
You may want to find out how you and your lawyer will handle your case. Here are some questions to ask your lawyer:
- How do you think we should handle my case?
- How will you update me about my case?
- Will someone other than you work on my case?
- If we lose this case, what does that mean?
- What can I do to help you on my case?
What if I have a problem with my lawyer?
If you are not satisfied with your lawyer, you have a number of choices, depending on the problem. Tell your lawyer if you are unhappy with the way your case is being handled. Maybe the lawyer is not aware of the problem and is able to work out a solution. If not, you are free to change lawyers, but you probably will have to pay for the work that has already been done by the first lawyer.
Who owns the records in my case file and how would I get a copy of that or the file itself?
You own the file. If you fire the lawyer, you generally get the original file.
These websites and many others provide helpful information:
State Bar of Arizona
Maricopa County Bar Association
Pima County Bar Association
Supreme Court of Arizona
Maricopa County Superior Court
Pima County Superior Court
Arizona Attorney General
The State Bar of Arizona works tirelessly to protect the public. While the vast majority of lawyers serve their clients professionally, sometimes clients feel there is a problem with the way they are being represented by their lawyer. When this happens, they can turn to the State Bar for assistance.
The State Bar investigates charges of unethical conduct against lawyers practicing in Arizona. If you believe that a lawyer has acted unethically, you can file a charge with the State Bar. Before doing so, please read this brochure, which provides general information about the process to discipline lawyers in Arizona and the Attorney/Consumer Assistance Program (A/CAP).
If you want the assistance of A/CAP, please call the A/CAP hotline at 602.340.7280. If you are outside Maricopa County call 1.800.319.0514 x7280.
The responsibility of the State Bar of Arizona
The State Bar gets its authority to investigate charges against lawyers from the Arizona Supreme Court. Lawyer discipline is funded by annual fees paid by all members of the State Bar, not by tax dollars.
The State Bar's jurisdiction is limited to investigating matters that violate the Rules of the Supreme Court, particularly the Rules of Professional Conduct contained in Rule 42. These rules can be found in volume 17A of the Arizona Revised Statutes, which are available in most public and law libraries, or by clicking here.
A primary purpose of the disciplinary process is to protect the public. Lawyers engaged in serious misconduct, such as theft of client funds or certain crimes, may be suspended or disbarred. Other types of misconduct, such as not communicating with clients or failing to diligently pursue a case, may result in the lawyer receiving a reprimand or admonition, the lawyer being placed in a supervised diversion or probation program, or provided an educational comment. Diversion programs address less serious acts of ethical misconduct that typically can be linked to poor law office management, chemical dependency, or other behavioral problems. Through the diversion program the lawyer is provided education or assistance to address specific conduct in an effort to prevent similar ethical violations from reoccurring. Successful completion of diversion results in the underlying matter being dismissed. Diversion records are not public, nor are they considered a disciplinary sanction.
In addition, the State Bar may be able to resolve simple disputes between lawyers and clients. For example, concerns about rude behavior in some instances may result in a discipline investigation, but also may be referred to another State Bar program that addresses unprofessional conduct.
The State Bar does not generally investigate issues pending in court or matters arising out of a lawyer's personal life, such as disputes with neighbors, creditors, or spouses.
A client can fire a lawyer for any reason. That reason may not be grounds for disciplining the lawyer. Lawyers sometimes make mistakes that upset clients but are not ethical violations.
Many times charges are filed against lawyers who represent other people. This is especially common in the area of family law, such as when one spouse files a charge against the lawyer of the other spouse. Before filing a charge against your opponent's lawyer, remember that it is a lawyer's duty to represent his or her client. You may not like what the lawyer does, particularly if it has a negative impact on you, but that does not necessarily make the conduct unethical.
Lawyers and their clients generally enter into agreements on the cost of legal services. Information or agreements about fees, costs and scope of representation must be in writing. Disputes over legal fees are not usually investigated for unethical conduct.
The State Bar operates a fee arbitration program to provide a free method of resolving fee disputes. For the arbitration to be binding, both the client and the lawyer must agree to arbitrate. To receive forms for fee arbitration, call 602.340.7379.
What will the State Bar investigate?
Here are a few examples of the kinds of conduct the State Bar has authority to investigate:
- A lawyer does not do what he or she has promised or does not act in a timely manner.
- A lawyer continually fails to respond to inquiries about the case, to tell you about court dates or to appear in court.
- A lawyer lies or advises you or someone else to lie in the course of a case.
- A lawyer represents you as well as another person whose interests conflict with yours.
- A lawyer will not give you money he or she is holding on your behalf or will not give you a full written accounting.
- Complaints about non-lawyers engaged in the practice of law.
You should also be aware of what the State Bar cannot do.
- The State Bar cannot investigate charges of isolated malpractice, give legal advice, or become involved in a specific legal dispute.
- The State Bar does not investigate charges against judges. Complaints against Arizona judges should be referred to the Commission on Judicial Conduct at 602.452.3200.
- The State Bar does not investigate charges against lawyers who are not licensed in Arizona unless they are practicing law in Arizona. Usually charges must be filed in the state where the lawyer is licensed.
If you feel your lawyer or the opposing lawyer has violated an ethical rule, using the examples listed as a guide, please call the Attorney/Consumer Assistance Program(A/CAP) at 602.340.7280. An A/CAP staff member will talk with you about your case, the nature of your dispute and the actions of the lawyer. If your dispute appears to raise issues of ethical misconduct, your information will be provided to one of the A/CAP lawyers for review.
Review and investigation
If a Bar counsel contacts you to talk about your dispute, it is important that you provide reliable contact information. The Bar counsel will decide whether your charge concerns possible ethical misconduct. If it does, the Bar counsel may conduct a preliminary investigation. The preliminary investigation may include talking to the lawyer about your charge or requesting a written response from the lawyer, speaking with other witnesses, or reviewing documents you provide or that are available from the court. You may be asked to submit your charge in writing. Please note that written and telephone submissions are generally public records and are not confidential.
The State Bar receives approximately 5,000 charges a year. It may take several weeks before this initial review is concluded. The Bar counsel will then decide what, if any, action is appropriate. The Bar counsel may try to help you informally resolve your dispute with the lawyer.
If, after this initial review, the Bar counsel determines that there is probable cause to believe that the lawyer has violated the ethical rules, the Bar counsel will assess the seriousness of the violation. In cases in which the violation is minor, or the conduct may be remediated, the Bar counsel may address the conduct with the lawyer or place the lawyer in a diversion program. If the misconduct is more serious, and it appears that clear and convincing evidence exists to support the allegations, the case may be more formally investigated. You will be notified of the decision.
In cases that warrant a more formal investigation, you may be asked to provide additional information and/or speak with a State Bar investigator. If formal disciplinary proceedings are initiated, a hearing may be held and you may be required to appear as a witness and testify. It is very important that you give the State Bar your current contact information, and update that information should it change before the hearing is held or the matter is concluded.
Do not delay in exploring other possible remedies you may have against the lawyer simply because you have filed a charge with the State Bar. You may lose valuable legal rights if you wait for the the State Bar's investigation to conclude.
If you want to find out if you have other remedies against the lawyer, you should contact another private lawyer. If you believe a lawyer has acted illegally, you should report that conduct to appropriate prosecuting authorities. The State Bar's staff cannot give you legal advice, get involved in your case, or tell you what you should do.
Most of us have heard the phrase personal injury, but many people may not be sure exactly what it means. A personal injury refers to a situation where someone has been physically or emotionally injured or killed by the wrongful act of another.
A personal injury claim is when the individual harmed wants to get money from the person or company that wronged them as compensation for the harm. This claim may be for negligence, which simply means the injured person claims the wrongdoer was careless. Automobile accident cases are the classic example of negligence claims. Another example is a slip or trip and fall which is called premises liability.
If the carelessness is committed by a professional, such as a doctor, lawyer or accountant, it is called professional malpractice. As you might guess, products liability refers to harm caused by a defective product. Finally an industrial or worker's compensation claim is one for injuries or death which occurs on the job. Unlike other personal injury claims, the person making the worker's compensation claim need not prove anyone was at fault or careless in order to recover worker's compensation.
Who will pay for my medical bills, lost time from work, and physical limitations?
Personal injury law says that if someone else carelessly causes an accident they can be responsible to pay medical bills, as well as any pain, discomfort, emotional harm, lost wages or physical limitations which are the result of the accident.
Expenses for medical bills and lost time from work are usually easy to calculate down to the penny. However, a compensation for pain, scarring, emotional harm, or physical limitations - both short and long term - are not so easy to calculate. For these items you, your lawyer, insurance companies and sometimes juries must decide the fair and reasonable amount of money that will compensate for your injuries and harms.
Remember, however, that the other person may not have any insurance, or enough to pay the bills. Also, sometimes there may be a dispute as to who was at fault or whether all the injuries and treatment are directly related to the accident. That’s why it’s usually best to first submit your bills through your own health insurance. A lawyer can advise you on questions of fault, available insurance coverage and who is responsible to pay for these things as well as whether your health insurance, treating doctors or hospital have a right to a share of your claim.
How does fault come into play?
Whether someone will owe for the harm caused to you depends on who was at fault and how much they were at fault. Frequently, there will be several individuals and companies that share some of the blame. Often, the injured person also has some responsibility for their own injury. The total amount of money each person or company must pay depends on what percentage of fault they have and the injured person’s claim is reduced by their percentage of fault.
What is a wrongful death case?
If someone dies as a result of another’s carelessness or fault, the surviving family members can bring a wrongful death claim for the loss of their loved ones. In Arizona, the only persons who can bring such a claim are the parents, the wife or husband and natural children of the person who died. They may seek to be paid for any loss of financial support from their lost loved one, as well as their loss of love, guidance and companionship.
Do I need a lawyer to make a claim?
Although you are not required to have an attorney to make a personal injury claim or to negotiate with an insurance company, an attorney can help you to understand your legal rights. If you caused an accident or may be responsible for someone else's injuries, an attorney will usually be hired by your own insurance company to represent you depending on the type of claim and coverage. Regardless, if you are in an accident you should always immediately contact your own insurance company and tell them what happened. This is true whether you think you were at fault or not.
How long do I have to pursue a claim?
If you are unable to agree on an amount to settle your claim with the other person(s) or their insurance company, you must file a lawsuit to protect your rights. For most negligence cases in Arizona, you must file the lawsuit within two years of your injury. Be careful, though, because some deadlines can be as short as six months. There are different requirements for making a claim against government agencies, or if you were hurt on the job.
How are personal injury attorneys paid?
Some lawyers charge their clients based upon how many hours they work on a matter for their client. Others charge a set amount for handling specific types of problems. Most personal injury lawyers are paid a percentage of the money you ultimately obtain as part of a settlement or trial. This is called a contingency fee.
The way this usually works is the lawyer agrees to bring the claim and do his/her best to get a satisfactory settlement. If a settlement cannot be reached, then the lawyer will take the case to trial and ask a jury to decide what the client should be paid. At the beginning of the case, the client agrees that the lawyer’s pay will come out of the money he actually gets for the client; an agreed upon percentage of the amount collected. Once money is obtained for the client the lawyer then takes that percentage of the money collected.
The client and lawyer also usually agree at the beginning of the claim that the lawyer will pay all the litigation related costs of the case until money is collected for the client. At that time, the reimbursement of those litigation costs, in addition to the contingency fee, comes out of the money collected for the client. These litigation costs may include filing fees at the court house, costs for investigators, expert witnesses and the cost of obtaining medical records. These costs are separate and different than attorneys’ fees. Fees are to pay the lawyer for his/her time, skill and effort. Costs cover expenses the attorney had to pay up front to advance a personal injury claim to a settlement or trial.
Finally, it also is usually agreed at the beginning of a case that if the lawyer does not succeed in getting any money for the client, then the client will not owe any fees at all to the lawyer. Fees in a personal injury claim almost always depend upon the lawyer being successful in obtaining money for the client. The client, however, may still have to repay the lawyer for costs associated with the personal injury claim.
How can I find an attorney?
One of the best ways to find a lawyer is to get a referral from a trusted friend or family member. Ask questions such as “How did you know the lawyer? What kind of matter did the lawyer handle for you? Was the lawyer prompt and attentive to your needs? Were you satisfied with the result?” If you already know a lawyer you should ask that lawyer what her specialty is. Most lawyers practice in particular areas and you may find it wise to hire a lawyer who specializes in personal injury.
You can also go to the State Bar of Arizona's website at www.azbar.org and search for lawyers using the member directory. It allows you to search for Arizona attorneys by name, practice area, office location and key words. Importantly, the State Bar of Arizona has stringent standards lawyers must meet before they can be certified as a Specialist in an area of law. Personal Injury and Wrongful Death Specialization was created by the State Bar to protect consumers and to make it easy for them to find qualified lawyers who practice in this area. To be certified in personal injury and wrongful death a lawyer must pass a written test, have participated in a significant amount of trials, and receive high recommendations from judges and other lawyers.
Click here to find the names of attorneys who are certified as Specialists in Personal Injury & Wrongful Death law.
What to Do if You Are Involved in a Car Accident
- The most important thing is your health. If necessary, go to the emergency room or follow up with your regular doctor. You should bill all treatment through your regular health insurance, if you are covered. Some doctors will agree to provide treatment and wait to be paid from a settlement.
- Pay close attention to the details of how the accident occurred. Try to find out who was responsible for causing the accident or injury. You should call the police and request that a report be made when you are involved in an accident that was someone else's fault. If the police do not do so, you should obtain the contact information for everyone involved and their insurance companies as well as the names and contact information of any witnesses. If you are not hurt and are able to safely take pictures of the cars and the road with your cell phone, do so.
- Talk to your insurance agent. After an accident, review your own insurance policy and talk to your insurance company or agent. You may be entitled to payments for medical bills ("med pay coverage") and your own car insurance may apply if the other driver does not have insurance or if there is not enough insurance ("uninsured and underinsured motorists" coverage).
- Always report the accident to the other person's insurance company. Always be polite and cooperative when reporting the accident, but remember that you generally do not need to give a recorded statement nor should you talk about your injuries until you are released from your doctor's care.
- Document your injuries and expenses. Keep track of all expenses you incur, including bills and receipts, and be sure to document any time lost from work due to the accident. Take photographs of the vehicles, the accident scene, as well as your own injuries, if applicable.
- What to do if you caused or may be responsible for the accident. Never leave the scene of an accident. You will need to cooperate by providing truthful information to the police or sometimes to your employer if the accident happened while you were on the job. If you may be at fault for causing an accident and you have insurance, you should report the accident to your own agent or insurance company, and they will usually be able to take care of investigating the accident, settling any claims based on the available coverage, or hiring a lawyer to defend you, if necessary.
When you need legal help, understanding your choices and the impact they may have is important. You can often avoid costly and complicated issues if you consult a lawyer before you have a legal problem. A lawyer can evaluate your situation and help determine your next steps and possible solutions.
When should I seek professional legal advice?
Every legal situation is unique and requires specific legal analysis. In some cases, the wrong decision may cost you your legal rights.
Here are some examples of when to seek a lawyer's assistance:
- Before signing any written contracts with major legal/financial provisions or consequences.
- Before starting or buying a business.
- When facing tax problems or questions.
- When making a will or planning an estate.
- If you are involved in an accident that results in personal injury or property damage.
- If you are being investigated for a crime.
- If you are being sued by someone, or if you want to sue someone.
- When your family status has changed through marriage, adoption, divorce, guardianship, or otherwise.
Why should I consult a lawyer?
Only lawyers can give legal advice in Arizona. Lawyers are trained professionals who must be licensed through the Arizona Supreme Court. In order to be licensed, lawyers must show that they have the education, training, and character necessary to practice law. Lawyers are also required to follow a strict set of ethical rules. If lawyers violate these rules, they may be subject to professional discipline. Therefore, to protect consumers, the law provides that only lawyers may give legal advice. To confirm a lawyer’s standing and check their discipline history, go to the online Find a Lawyer feature on our homepage or contact the State Bar at 602.340.7239.
How do I choose a lawyer?
There are many ways to find a competent and affordable lawyer in Arizona who can assist you with your legal matters.
- Get recommendations from friends and family members who have had positive experiences with lawyers.
- Search for lawyers by practice area or location at the State Bar’s online Find a Lawyer feature on our homepage.
- Visit the lawyer’s website; see if they will answer some basic questions before you commit to meeting with them. Ask about their experience in handling your particular issues, and their availability to take client phone calls and respond to emails. Some lawyers insist that clients make appointments and will not answer client calls and emails. You will want someone who is accessible when you need them.
- Search for lawyers licensed to practice law in Arizona in our member directory. You can search by name, practice area, location or key word.
- Consult a list of Certified Legal Specialists. Contact the State Bar at 602.340.7300 for a list of specialists in the areas of Bankruptcy, Criminal, Estate and Trust, Family, Personal Injury and Wrongful Death, Real Estate, Tax and Workers’ Compensation.
- Use a Lawyer Referral Service. For a small fee, these services will find a lawyer for you. In Maricopa County, call 602.257.4434. In Pima County, call 520.623.4625. In other counties, check your telephone directory for the listings of local bar associations.
How can I get help preparing documents?
You have several options if your legal situation requires document preparation:
Lawyers can always prepare your documents. They can also give you legal advice about representing yourself in court, which is especially important if you are facing any complex issues. Be aware, however, that some lawyers will not prepare documents unless they are retained to handle the entire case.
- Prepare the documents yourself. For a small fee you may be able to purchase court-approved forms from the court where you are filing your documents. Some forms may also be accessible online or at the Clerk's Office of your county's Superior Court Office. You can find self-service information at the Supreme Court's website. Please note that you are expected to know the applicable law and court procedures if you prepare your own documents, and that you will be held to the same standards as licensed lawyers.
- Certified Legal Document Preparers can only complete the documents requested by a customer. They cannot tell you which documents to use if the decision-making process involves expressing a legal opinion, provide advice, or represent you in court. It is important that you consult a lawyer or the Clerk of the Court for information about how to properly file and serve documents.
What should I do if my case goes to a hearing or trial?
With a few exceptions, only a lawyer may represent you in court. If you do represent yourself, you will be expected to be familiar with court procedures, comprehend your documents, and understand the law related to your case. Check with the court for the availability of materials that explain how to represent you in that court.
How can I be sure that I am using a Certified Legal Document Preparer?
To determine the status of a Certified Legal Document Preparer, contact the Arizona Supreme Court at 602.452.3108.
Who can I contact if I have a problem with a lawyer, Certified Legal Document Preparer, or non-lawyer?
- For lawyers, contact the State Bar of Arizona at 602.340.7280.
- For Certified Legal Document Preparers, call the Legal Document Preparer Program at 602.452.3108.
- For non-lawyers, contact the State Bar of Arizona at 602.340.7205.
Where can I get free or inexpensive help?
There are organizations in Arizona that provide legal assistance for free or at a reduced cost. Each organization has different eligibility requirements. Requests for such assistance are many so there may be a long wait to receive help.
Your first call should be to the Contact Clearinghouse Center at 866.637.5341. The Center is a joint program of the State Bar and the Arizona Foundation for Legal Services & Education, in partnership with numerous legal organizations.
Visit AZLawHelp.org to search for information, download court forms, and find the legal agencies that serve Arizonans most in need. Other useful information can be found at lawforkids.org and lawforseniors.org.
Proceed with Caution!
Some people who are not lawyers may try to practice law. Only active members of the State Bar of Arizona may practice law in Arizona. Only active members of the State Bar of Arizona and Certified Legal Document Preparers are authorized to prepare legal documents for you. You may lose your legal rights and have no avenue for recovery if you rely upon a non-lawyer for legal advice.
The relationship between a client and his or her lawyer is usually one that serves the client's needs and is satisfying to both the lawyer and the client. At times, though, a disagreement may arise regarding the legal fees charged. When that occurs, the State Bar of Arizona provides a free method to help resolve those disputes.
The lawyer and the client generally agree to the cost of legal services. In most cases, lawyers must communicate the basis or rate of their fee to their clients in writing.
Clients should always receive this fee information in writing. If the fee agreement is contingent on the outcome of a matter or if fees are shared between lawyers, the client must sign the agreement. A written fee agreement is not required for regularly represented clients if the hourly rate will be the same as in other matters but a lawyer must communicate fee changes in writing. If the lawyer states in the agreement that a fee, a retainer, or other money collected from a client is "earned upon receipt," "nonrefundable," or uses similar language, the lawyer must also advise the client in writing that the client can always end their relationship at any time and all or part of the fee may still be refundable.
When a dispute arises over the amount of legal fees, the State Bar’s Lawyer Regulation Office typically does not investigate. Instead, the State Bar offers a free arbitration program to resolve fee disputes. The Fee Arbitration Program is voluntary, but both the client and the lawyer must agree to arbitrate.
Information About Fee Disputes
If you are disputing the amount of fees charged by your lawyer, the Fee Arbitration Program might be available to you. This is a free, voluntary program in which an arbitrator is assigned to determine the reasonable fees for the legal services performed. The amount in dispute must be $500 or more, and the dispute must be filed within three years of the date the client-lawyer relationship ended. Both the client and lawyer must agree to arbitrate by signing an agreement to arbitrate. Fee arbitration is only available if no litigation to resolve the fee dispute is pending.
For more information about this program, please call the Fee Arbitration Program at 602.340.7379. Download the forms here.
Resolving a Fee Dispute
The State Bar of Arizona's Fee Arbitration Program operates the program under procedural rules approved by the State Bar Board of Governors.
The complete rules of procedure governing the Fee Arbitration Program along with the forms needed to file for arbitration are available at the website listed above. Ethical Rule 1.5, which sets forth lawyers' obligations regarding fees, also is available there.
The signed documents should be mailed to:
State Bar of Arizona, Attn: Fee Arbitration
4201 N. 24th Street, Suite 100
Phoenix, AZ 85016-6266
1. Completing and mailing out the forms
Read the Rules of Arbitration of Fee Disputes Sign and complete the following forms:
Sign both forms and return them to the State Bar at the address above. Do not fax or email forms. You must also attach a copy of the fee/retainer agreement or letter you signed with the lawyer or law firm.
If someone other than the client paid all or part of the lawyer’s fees, then that person also must sign these forms. Forms not completed or signed will be returned causing a delay in the processing of the file.
Forms and attachments must be submitted in single-sided, loose-leaf form. Do not use staples, tabs or binders.
2. Contacting the opposing party and taking jurisdiction
The State Bar will send copies of the forms to the opposing party, who will have an opportunity to respond. If the opposing party agrees to arbitrate; both parties will be bound by the award.
If the opposing party declines to arbitrate or does not respond, you will be notified and the file will be closed.
The petition will be reviewed to make sure that the dispute is within the Committee’s jurisdiction. If the dispute is not within the Committee’s jurisdiction, you will receive a letter explaining why the Committee declined jurisdiction.
3. Appointment of arbitrators
A Committee member will appoint an arbitrator (or a panel of arbitrators, if a panel is requested and the fees are more than $20,000). Both parties will be notified of the appointment. If either party objects to an appointed arbitrator, the objecting party must do so in writing by a deadline.
4. Setting time for hearing
Both parties will be notified in writing of the date, time and location of the hearing at least 15 days before the hearing date. This notice will be served personally or by first-class mail and sent to each party’s last known address and will constitute notice. As a result, it is important for each party to keep the State Bar informed of any address changes.
5. The arbitration hearing
At the arbitration hearing, both parties may present witnesses and documentary evidence, and you both may be represented by a lawyer. Witnesses may be cross-examined. Any party to the arbitration may make arrangements to have the hearing recorded by a court reporter or by electronic tape recording at the party’s own expense, provided notice is given to the opposing party and the arbitrator(s) at least three days before the scheduled hearing.
If either party fails to appear at the hearing without good cause, the arbitrator(s) may proceed with the hearing and resolve the dispute upon the evidence produced.
6. The arbitration award
A sole arbitrator should render the award within 20 days after the close of the hearing and a panel should issue an award within 40 days after the close of the hearing. These are only suggested time frames and are not mandatory. A signed copy of the award will be mailed to each party upon receipt and review by the State Bar office.
7. Award is final and binding
The arbitration award is final and binding on all parties who agree to arbitrate by signing the Agreement to Arbitrate. The parties will have 30 days to comply with the award unless the arbitrator indicates otherwise. The award may be enforced by any court of competent jurisdiction.
The Fund's Mission
The Arizona Supreme Court established the Client Protection Fund ("CPF" or "the Fund") in 1961 to promote public confidence in the administration of justice and to preserve the legal profession's integrity by reimbursing people who have lost money because of dishonest conduct of lawyers admitted and licensed to practice in this state.
Download the Fund's 2017 Annual Report
Need to File a Claim?
All Client Protection Fund claims must be submitted on the official "Claim for Relief" form with supporting documentation, available below:
Client Protection Fund Declaration of Trust: Rules and Claim Criteria
What is the Client Protection Fund and how is it funded?
The Client Protection Fund is a trust that is an entity separate from the State Bar of Arizona, but exists as part of the State Bar's business structure. The Client Protection Fund's Board of Trustees receives, holds, manages, and disburses money from the Fund. The Fund is not funded by taxpayer dollars. Each lawyer licensed to practice law in Arizona contributes a yearly assessment to the Fund. That money is invested, which allows the Fund to pay more claims. The Trustees can pay up to $250,000 in claims against one lawyer, and up to $100,000 per claimant.
Who administers the Fund?
A five-member Board of Trustees administers the Fund. The State Bar of Arizona Board of Governors appoints the four lawyers and one non-lawyer who volunteer their time. In addition, the Fund Administrator and other State Bar staff help the Trustees administer claims.
The Trustees evaluate claims, determine if they are eligible for payment, and compensate eligible claimants. The Trustees invest Fund money in accordance with the State Bar Board of Governors' investment policies. Each year the Trustees prepare and present an annual report to the Arizona Supreme Court and the State Bar Board of Governors.
Who is eligible to receive money from the Fund?
- People who have had a lawyer-client relationship with a lawyer
- People who have had a fiduciary relationship with a lawyer that is customary and related to the practice of law, such as an administrator, personal representative, executor, trustee, guardian, or conservator
Who is not eligible to receive money from the Fund?
- The present or former spouse of the lawyer
- The child, parent, grandchild, grandparent, or sibling of the lawyer, whether by blood or marriage
- Partners, associates, co-shareholders, or employees of the lawyer
- Any surety or bonding agency
- Any business entity controlled by the lawyer
- Any governmental entity or agency
- Medical providers or other third parties with claims against the lawyer
- Any business entity, however, the Trustees may approve payment of a claim that has been filed by a small, family-owned and operated business.
- Large companies and corporations are not considered eligible claimants
What types of losses are eligible for reimbursement?
Losses caused by the "dishonest conduct" of a lawyer, which is defined as:
- Wrongful acts such as theft or embezzlement of money
- The wrongful taking or conversion of money, property or other things of value
- Refusal to refund unearned fees received in advance when the lawyer performed no services or such an insignificant portion of the services agreed on that the refusal to refund the unearned fees could be considered a wrongful taking or conversion of money
- A lawyer's intentional dishonest or deceitful conduct that leads to the loss of money or property
What Types of claims are NOT eligible for reimbursement?
- Claims based on the lawyer's negligence, incompetence, or malpractice
- Claims based on disputes about fees charged when the lawyer performed more than an insignificant amount of work
- Money a claimant gave to a lawyer for investment, loan, or any other purpose that did not arise from a lawyer-client relationship
- Claims requesting reimbursement for interest, legal fees paid to other lawyers, damages, or other expenses
Is there a time limit for filing a claim?
CPF claims must be filed no more than five years from the time the claimant knew, or should have known, of the lawyer's dishonest conduct. The Trustees, in their sole discretion, may consider claims filed after the time limit has expired.
What happens after I file my claim?
The Fund Administrator will review your claim. If additional information is needed, it will be requested in writing. When all of the necessary documentation is submitted, the Administrator will investigate your claim and determine if it is is eligible for consideration.
- If the Fund Administrator determines that the claim is not eligible for consideration, you will be notified in writing. You then have 30 days to request reconsideration. All requests will be forwarded to the Board of Trustees for reconsideration. If the Trustees deny your request for reconsideration, you will be notified in writing. That decision is final and there is no further appeal process.
- If the Fund Administrator determines that your claim is eligible for consideration, a notice of claim and a copy of your claim will be sent to the lawyer, who is allowed 30 days to respond. If the lawyer submits a response, a copy will be sent to both you and the Trustees. Your claim will then be investigated and scheduled for consideration at a future board meeting.
- If the Trustees vote to pay your claim, and certain conditions apply (as described above), then the Fund will issue a check to you. The certain conditions are that the lawyer must have been, for at least six months, dead, disbarred, on disability inactive status, suspended for longer than six months, placed on interim suspension, or convicted of a felony arising out of the facts alleged in your claim. If your claim has been approved, but is not yet eligible for payment, payment will be held until one of the events listed above occurs.
- If the Trustees deny your claim, you will be notified in writing and given an opportunity to request reconsideration. If you do submit a Request for Reconsideration, it will be forwarded to the Board of Trustees for consideration at a future Trustee meeting. If the Trustees deny your claim, you will be notified in writing. That decision is final and there is no further appeal process.
How long will it take to process my claim?
Processing a claim may take approximately six months to a year, or more, due to the eligibility requirements, investigation process, or the status of any discipline proceedings against the lawyer.
May I file charges with any other entities?
- Claimants should call the State Bar's Attorney Consumer Assistance Program ("A/CAP") at 602.340.7280 for more information about filing disciplinary complaints against lawyers.
- If your lawyer has died, you may be able to file a claim against the lawyer's estate. Please contact the Clerk of the Superior Court for your county or the county in which the lawyer worked and ask if a probate matter has been filed in the lawyer's name. The Clerk's office also can help you to obtain the forms you need to file a claim against the lawyer's estate. **NOTE: Not filing a claim against the lawyer's estate will not automatically disqualify your Client Protection Fund claim, however, the Trustees prefer that claimants attempt to recover their loss from any other reasonable sources before filing a claim with the Fund.
- Persons involved in a fee dispute with a lawyer may contact the State Bar's Fee Arbitration Program at 602.340.7379.
- Claimants may also contact the Arizona Attorney General's Office at 602.542.5025 in Phoenix, or 520.628.6504 in Tucson.
- Claimants may have other options, and may wish to consult with a lawyer to determine what course of action to take.
For more information about the Client Protection Fund:
Karen Oschmann, Client Protection Fund Administrator
What is a divorce? A divorce, legally called a "dissolution of marriage," is a court procedure to end a marriage. The party who starts the divorce is known as the Petitioner. The other party is known as the Respondent.
What is A.R.S.? A.R.S. stands for Arizona Revised Statutes. When followed by "§"and a number, it refers to a particular Arizona law. These statutes may be found at www.azleg.gov/ArizonaRevisedStatutes.asp as well as in any county law library.
What is A.R.F.L.P.? A.R.F.L.P. stands for Arizona Rules of Family Law Procedure. These rules may be found at http://www.supreme.state.az.us/rules/ramd_pdf/R-05-0008.pdf or in any county law library.
When can I file for a petition for divorce? You or your spouse must have been a resident of Arizona for at least 90 days before you can file for a divorce. A.R.S. § 25-312.
What reasons must I give in order to get a divorce? Arizona is a no-fault state, which means that neither spouse needs to give a reason for the divorce. Only one party needs to assert that he or she believes the marriage is "irretrievably broken." If the parties choose to have a "covenant marriage" at the time of their marriage or later convert their marriage to a covenant marriage, the party seeking the divorce must prove grounds found in A.R.S. §25-903.
Do I need a lawyer to represent me? Everyone is entitled to represent himself or herself in a divorce. However, if you represent yourself, the court will expect you to follow all laws and the correct procedures that apply to your case, even if you are not an attorney. If you do not follow the correct procedures, you could lose important rights and the ability to request certain benefits forever. If your case goes to trial and you do not follow the correct procedures, the judge may not allow you to present certain evidence or call witnesses. Court personnel and judges are not allowed to give you legal advice. If you do not understand the laws or court procedures, you may contact an attorney for assistance, and you may find this list of Certified Family Law Specialists helpful.
In certain circumstances, a judge may order your spouse to pay all or a portion of your attorney's fees.
How does the divorce procedure work? One spouse files a Petition for Dissolution of Marriage and related initial documents.
After the Petition for Dissolution of Marriage is filed, copies of all of the papers must be served on your spouse unless service is waived in writing and filed with the court. Your spouse has 20 days (if served in Arizona) or 30 days (if served outside of Arizona) to respond to the Petition for Dissolution of Marriage.
If your spouse fails to file a Response within those 20 days, the other spouse can apply for a default. After a request for default is filed, your spouse only has 10 days to file a Response or risk the divorce being granted on all of the terms of the petitioning spouse.
If no Response is filed, at the end of the "cooling off" period of 60 days after the Respondent is served with the divorce papers, the Petitioner may obtain a Default Decree of Dissolution of Marriage.
If a Response is filed but both parties reach an agreement as to all issues, they can submit a Consent Decree of Dissolution of Marriage that sets forth all of their agreements for the judge to sign. A.R.F.L.P. Rule 45(B).
What if my spouse does not agree to a divorce? If your spouse does not want the divorce, he or she may request that the parties attend a conciliation meeting with the court. The divorce will be put on hold for up to 60 days while that meeting takes place. If the meeting does not result in the parties agreeing to postpone the divorce, the divorce will go forward.
There is no charge to request a conciliation meeting.
What happens if my spouse and I do not agree on something during the divorce proceedings? If you and your spouse do not agree on a particular issue, such as custody of children, spousal maintenance, or division of property, it may be necessary to have a judge decide these issues for you. You must then request a trial in order to finalize your divorce.
The procedure for requesting a trial varies from county to county. You should seek the advice of an attorney if you are not able to determine how to obtain a trial date. Many courts have information and forms available to the public either in their law libraries or their websites.
Some courts offer free mediation services.
How long does it take to get a divorce? After your spouse is served with the Petition for Dissolution of Marriage, a 60-day "cooling off" period must transpire before the divorce may be finalized. It is not possible to be divorced any sooner even if both parties agree. If the parties do not agree on the terms of the divorce, a trial will be set. Depending on the county, these proceedings could take as long as six to nine months before a divorce would become final.
What is covered in a decree of dissolution of marriage? A Decree of Dissolution of Marriage will:
- Terminate the marriage.
- Determine custody, parenting time and support of the minor children, if any.
- Determine spousal maintenance (alimony), if any.
- Divide property acquired during the marriage, and affirm property owned prior to the marriage (if any) to the party who owned it.
- Assign responsibility for debts incurred during the marriage, and affirm debts owned prior to marriage (if any) to the party who owed them.
- Determine responsibility for attorney fees and costs, if any.
- Restore the last name of a requesting spouse (optional).
Can I get temporary orders while the case is pending? While your divorce is pending, you may apply for temporary orders regarding custody, parenting time, child support, spousal maintenance, attorney fees, and other matters. The procedure to request a hearing for temporary matters varies from county to county. You should seek the advice of an attorney if you are not able to determine how to obtain a hearing for temporary orders.
What is a preliminary injunction? A Preliminary Injunction is a form of restraining order which is issued at the beginning of every divorce case. The Preliminary Injunction is issued to both parties and requires that neither party harass the other, that no community property is sold, that existing insurance is maintained and that minor children not be removed from the state without court permission or the other parent's written consent.
What if my spouse has committed domestic violence or may become violent? If your spouse has committed domestic violence or may become violent during the dissolution proceedings, you may apply for an Order of Protection. The forms for an Order of Protection are available for free at any Superior Court, Justice of the Peace Court or City Court. You will see a judicial officer on the same day that you fill out the Petition for Order of Protection. There is no charge to apply for an Order of Protection.
Always call 911 in an emergency.
Is there a mandatory parent education program? If the parties have a minor child or children together, both parties must attend a court- mandated education program about the impact of divorce on children. Both parents must attend, even if there is no disagreement regarding custody and parenting time. If one party does not attend, he or she may not be able to obtain custody and/or parenting time with the child(ren). The parties may not attend the same class at the same time. A.R.S. § 25-351
What if I cannot afford court fees or service of process? You may be eligible to have your court filing fees and service of process fees waived or deferred depending on your financial circumstances. Forms to request that the filing fees and service of process fees be waived or deferred are available at no charge at the office of the Clerk of the Court of each county.
After you fill out the forms, a judge will determine whether or not your fees will be waived or deferred. If your fees are deferred, you must make payments toward those fees as your case progresses. If your fees are waived, you are not responsible for paying those fees.
The following organizations may be able to assist you in obtaining additional information:
|Maricopoa County Bar Association
Lawyer Referral Service
|Pima County Bar Association
Lawyer Referral Service
|Family Lawyers Assistance Project (FLAP)||602.506.7948|
|Community Legal Services|
|San Luis||928.627.8023||or 800.356.7115|
|DNA People's Legal Services, Inc.|
|Window Rock||928.871.4151||or 800.789.7287|
|Chinle DNA||928.674.5242||or 800.789.7598|
|Flagstaff DNA||928.774.0653||or 800.789.5781|
|Hopi DNA||928.738.2251||or 800.789.9586|
|Tuba City DNA||928.283.5265||or 800.789.8919|
|Southern Arizona Legal Aid, Inc.|
|Pima County||520.632.9465||or 800.640.9465|
|Pinal County||520.316.8076||or 877.718.8086|
|Cochise/Graham/Greenlee County||520.432.1639||or 800.231.7106|
|Gila/Navajo/Apache County||928.537.8383||or 800.658.7958|
|Tohono O'odham||520.623.9465||or 800.640.9465|
|Four Rivers Indian Legal Services||620.562.3369||or 866.312.2290|
|White Mountain Apache Legal Services||928.338.4845||or 866.312.2291|
What is a will? A will is a written document that directs the disposition of a person's property after his or her death. A will nominates one or more "personal representatives," sometimes also referred to as "executors," to manage and distribute the estate. A will can also nominate a person to serve as a guardian and/or a conservator for a minor child or incapacitated adult.
What happens if a person dies without leaving a will? Any assets in his or her estate will be distributed according to Arizona laws that designate which family members, or "heirs," will receive assets.
Does a will affect all assets? Assets for which you have set up a different method of transfer, such as beneficiary designations, payable on death (POD) accounts, transfer on death (TOD) accounts, joint tenancy with right of survivorship, community property with right of survivorship, and/or titled into the name of a Trustee, are not affected by a will. Remember to check whom you have named as beneficiary on any IRAs, annuities, life insurance and/or retirement plans. You can also name a beneficiary for your car, and record a beneficiary deed for real property. Assets with these kinds of transfer mechanisms automatically pass to the surviving owners or named beneficiaries.
Can a will be changed? A will can be changed or revoked any time before death. Often simple changes are made by an amendment called a "codicil."
What is probate? Probate is the process of submitting a deceased individual's will to the court, appointing a personal representative and following through with the legal requirements to dispose of the person's assets.
Probate proceedings are governed by the law of the state where the deceased person maintained his or her legal residence at the time of death, and by the probate laws of any other state where real property was located at the time of death.
Does a person need a large estate to have a will? No. Any person wishing to designate who will receive their assets at death should have a will. Individuals with minor children will want a will to nominate a guardian and to manage the assets for the minor children in a trust (which may be created under the will) and/or a custodial account.
Who should draft a will? Ideally a lawyer should draft a will. Only an expert legal professional can advise the best alternatives with respect to an individual's estate plan.
What is a holographic will? A holographic will is hand-written by the person making the will and needs to be signed by that person. Although a date is not required, it is recommended so that the last will of that person can be determined.
What is a living trust? A living trust, or revocable trust, is an estate-planning arrangement under which a trustee (which can be one or more individuals and/or a bank) takes title to the assets of the original owner (the "settlor"). In most cases, the settlor is also the initial trustee. The terms of the document designate who will take over as trustee when the initial trustee is no longer willing and able to act. The settlor is often the only beneficiary during his/her life.
What are the advantages of trusts?
- Cost savings. Avoiding probate can save substantial fees and costs.
- Incapacity management. Named trustees can manage assets for a settlor's benefit if he or she is incapacitated, avoiding the need for a court-appointed conservator.
- Tax savings. A trust arrangement can reduce estate taxes for a married couple in certain situations. Ask a lawyer for more information.
- Beneficiary protection. Setting up a continuing trust arrangement in either a will or a revocable trust can protect beneficiaries who are too young or otherwise unsuitable to receive all of their inheritance outright in a lump sum.
How do I obtain a will or trust? Consult with a lawyer experienced in estate planning to determine which estate-planning options are best for you. Using the services of someone not trained in estate planning can end up costing more money to fix problems.
Importantly, the State Bar of Arizona has stringent standards lawyers must meet before they can be certified as a Specialist in an area of law. Estate & Trust Specialization was created by the State Bar to protect consumers and to make it easy for them to find qualified lawyers who practice in this area. To be certified in Estate & Trust, a lawyer must meet high standards by passing a written test, participating in a significant amount of estate and trust legal matters for at least four of the last six years, and receive high recommendations from judges and other lawyers.
Click here to find the names of attorneys who are certified as Specialists in Estate & Trust Law.
In discussing an estate plan with a lawyer, make sure to speak openly and honestly about all of your assets. The person preparing your plan cannot determine your needs without knowing your circumstances.
To check the status and disciplinary history of a lawyer, look at the Find-a-Lawyer feature on azbar.org (which will include most discipline), or call the State Bar of Arizona at 602.340.7239. If you think you have been misinformed about living trusts, contact the Office of the Arizona Attorney General Fraud Line at 602.542.5763, or the Better Business Bureau at 602.264.1721.
Myths and Facts
Myth: Probate costs and attorney fees are usually as high as 10% of your estate.
Fact: Arizona court costs to open a probate are very modest. In addition, Arizona lawyers may charge only reasonable fees for necessary services, not percentage fees. Fees may increase in the event of tax issues, disputed creditor claims, or other litigation, but these same issues can arise with a trust.
Myth: In probate, assets are not distributed for several years.
Fact: An informal probate procedure can start as early as five days after death, and distribution can occur as soon as it is clear there are sufficient assets to pay expenses, creditors and taxes. Creditors have up to four months to submit claims and the personal representative may, but need not, delay distribution until the end of the creditors' claim period. A trustee may also have to delay distribution to pay taxes or divide property. An improperly prepared or funded trust may require money and time to correct before distribution can be carried out.
Myth: Probate forces the liquidation of your assets.
Fact: Liquidating assets is necessary only to pay expenses, creditors, taxes, or to make distributions to beneficiaries. A trust is not a guarantee against such liquidation for the same purposes.
Myth: Probate litigation is more expensive than trust litigation.
Fact: Unhappy family members or beneficiaries can challenge both wills and trusts. A trust is not a guarantee against litigation. Expenses will depend on the nature of the litigation.
Myth: A trust will avoid federal estate taxes.
Fact: A will or trust that provides for a "credit shelter trust" arrangement can reduce estate taxes for married couples who have combined assets over the federal estate tax exemption. A trust in and of itself does not reduce estate taxes at an individual's death, nor does a will.
Myth: Probate proceedings are complex and require special court approval.
Fact: In Arizona, most estates use informal probate procedures that do not require formal court approval. In many cases, personal appearance in court is not required.
At Will Employment: The majority of private-sector workers in Arizona are employees "at-will." Employment on an "at-will" basis means the employment is not covered by a written contract or bargaining agreement, and the employment relationship may be ended (i) for any reason not prohibited by law or for no reason, (ii) at any time, (iii) by either the employee or the employer, and (iv) with or without cause.
Employment Contracts: Most non-union employees are not covered by a written employment contract. If you do have a contract, it should describe the length of your employment, your job duties, and the circumstances under which your employment can be terminated. To be considered a binding written contract, the contract must fall into one of the following categories:
- A written agreement signed by the employer and the employee.
- An agreement in an employee handbook or manual expressly stating that it is intended to be an employment contract.
- A written document that the employer signs indicating that you will be employed for a specified certain period of time.
What You Should Know About Your Paycheck
Most employers are required to pay you:
- At least twice a month
- Not more than 16 days apart
- On regularly scheduled paydays
If the employer pays wages by automatic deposit or payroll debit card, the employer must furnish the employee with a statement of earnings and withholdings.
An employer can withhold any portion of an employee's wages if:
- It is required or empowered to do so by court order for civil judgment or child support payments.
- It has prior written authorization from the employee (for example, such as a payroll deduction for an insurance premiums, or a payroll deduction for charity, or deductions for uniforms or equipment not returned to the company when the employment ends).
- There is a reasonable good faith dispute as to the amount of wages due the employee, but only the amount in dispute may be withheld.
If an employee is terminated, the employer must pay all wages due within seven working days or at the end of the next regular pay period, whichever is sooner.
Under Arizona law, "wages" include commissions, compensation paid by the hour or by the piece, and severance pay/sick pay/vacation pay if the company offers them. If you are terminated, you may be entitled to be paid for accrued and unused sick pay or vacation pay under certain circumstances.
Overtime: Employers are required to pay non-exempt employees 1½ times the employee's regular hourly rate for any hours worked over 40 during any single workweek. Overtime cannot be offset by working fewer hours in the second week of the pay period.
Discrimination: Arizona and federal laws prohibit discrimination in employment on the basis of race, color, religion, sex, age, disability or national origin. Employers with fewer than 15 employees may be exempt from some but not all discrimination laws. In addition, some cities and towns, such as Phoenix and Tucson, have passed local ordinances prohibiting certain other types of discrimination; check with your local equal employment opportunity office for further information. Phoenix and Tucson prohibit discrimination on the basis of sexual orientation, gender identity or expression, and marital status. Tucson also prohibits discrimination on the basis of familial status.
Employers are also prohibited from discriminating against individuals due to pregnancy, family medical leave and veteran status. Laws also protect employees from retaliation in employment because an employee has complained of discrimination or participated in certain conduct, called "protected activity." Protected activity can include participating in an investigation into alleged discrimination, or asserting the employee’s own legally protected rights. Employees who report to the appropriate authority inside or outside the company what they in good faith believe is wrongful conduct by the employer may also be protected against retaliation as a "whistle-blower." Special "whistle-blower" rules apply for government employees.
What if I think I've Been Discriminated Against? Anyone who believes they have been the subject of employment discrimination may file a charge of discrimination with:
- Equal Employment Opportunity Commission (EEOC)— in most cases within 300 days of alleged discriminatory act, but in some cases the deadline is 180 days from the alleged discriminatory act.
- Arizona Civil Rights Division (ACRD) of the Attorney General’s Office—within 180 days of alleged discriminatory act.
After a charge is filed, an investigation is generally conducted by the agency, at no cost to the person filing the complaint.
The investigating agency will make a determination of Cause or No Cause. The agency will usually issue a "right to sue" letter to the person who filed the complaint, regardless of its findings. An employee who receives a "right to sue" letter has 90 days from receipt of the letter in which to file a civil suit against the employer, if so desired. After 90 days, the employee loses the right to sue the employer for discrimination.
What Legal Recourse Do I have if I Am Fired? You may file an action for wrongful termination within one year after termination of your employment. An employee may sue for wrongful termination under four circumstances.
- If the employer terminates an employee in violation of a written employment contract.
- If an employer terminates a worker for discriminatory reasons and the EEOC or ACRD has given the worker a "right to sue" letter.
- If an employer terminates an employee in retaliation for legally-protected conduct such as refusal to commit an illegal act, certain "whistle-blowing," or the employee's exercise of a statutory or public obligation (workers compensation, labor or voting rights, military or jury duty, victim’s leave, etc).
- If a public sector employer violates specific rights granted to public sector employees by federal constitution, state statute or other government regulations or contracts.
Privacy in the Workplace: Private sector employees do not have the same right to privacy at work as they do at home. Employers may have the right to review, monitor or have access to your:
- Work areas including offices, desks, drawers and lockers
- Computer system and files
- Email and internet use
- Voice mail
Polygraph Testing: Federal law imposes strict guidelines on conducting polygraph testing in the workplace. These guidelines include the circumstances under which testing can be administered, actual administration of the test, notice to the employee and the employee's rights.
Equal Pay for Men and Women: Federal and Arizona laws prohibit employers from paying an employee less than the rate paid to employees of the opposite sex for the same quantity and quality of the same classification of work. However, pay rates can be different when there is a difference in seniority, length of service, ability, or skill; a difference in duties or services performed; a difference in the shift or time of day worked, hours of work; or any other reasonable factor other than sex.
Workplace Drug Testing: Arizona regulates drug testing by statute. Employers may adopt a policy that requires applicants and employees to submit to drug and alcohol tests before being hired and during employment. These tests can be conducted on a random or periodic basis.
Candid and timely communication between you and your lawyer is essential for effective representation and can be crucial to the successful outcome of your legal matter. This information is designed to help you better understand the process of working with a lawyer so you can best work together to understand and resolve your legal issues. Effective communication between you and your lawyer will give you a strong voice in the legal system.
The First Meeting
The best way to have a successful first meeting with your lawyer is to be prepared. Before your initial appointment, gather and organize all documents and materials that may pertain to the matter and bring them with you, whether or not you think they may be "important." This simple step can save you time and money and will help your lawyer better understand your situation, including the possible strengths and weaknesses of your matter.
Be prepared to discuss with your lawyer what you wish to accomplish so that your lawyer can assess the chances of successfully accomplishing your goals.
Be prepared to answer detailed questions about your legal matter. Accurate details and truthful answers, even if you believe the information may hurt your case or could be embarrassing, will ensure that your lawyer can give you the most effective assistance. Surprises can strain the lawyer-client relationship and harm your case.
With only a few exceptions, your lawyer has an ethical obligation not to disclose information you discuss. That means that, except in extreme circumstances, your lawyer will not talk about your matter with anyone else without your permission. If you know that your lawyer will need to discuss your matter with others, give your lawyer permission to do so.
You also will want to make sure you leave your first lawyer-client meeting with answers to important questions. The list below is a helpful start.
Question you might want to ask your lawyer:
- What is your experience in this area of practice?
- How many cases like mine have you handled?
- Who else will be working on my case and how will you assign tasks?
- What are your rates and how will the billing be handled?
- What is the estimated total expense for costs and fees in my case?
- How can we keep the costs and fees down?
- What are my alternatives for resolving this matter?
- How will you keep me informed of developments, and how often will I hear from you?
- Who else in your office can I contact about my case?
- What documentation do you need from me?
- About how long will it take to resolve my case?
Client Rights and Responsibilities
You should expect your lawyer to:
- Represent you diligently.
- Be capable of handling your case. You are encouraged to ask about the lawyer's education, training, and experience before hiring him or her. The lawyer will inform you periodically about the status of your case and will give you copies, if you request, of legal documents prepared on your behalf.
- Charge you a reasonable fee and tell you in writing the basis for that fee.
- Provide you with a copy of your written fee agreement, and in that fee agreement set forth the amount of the fee(s) agreed to, an explanation of costs and expenses that will be your responsibility, and an explanation of how the costs and fee(s) incurred are expected to be paid by you.
- Provide an estimate of the total costs of the representation as well as the scope of the representation, or explain to you why estimating the total costs of the representation will be merely a guess, at best.
- Tell you whether you will need to pay any costs or fees if you lose your case.
- Keep confidential almost all statements and information that you reveal in the course of your relationship. Rare exceptions include subjects such as intent to commit a crime. The underlying facts of a matter and documents, however, do not become privileged just because you discuss them with your lawyer. It is the advice and communication between you and your lawyer that is confidential.
- Give you the right to make the ultimate decisions on the legitimate objectives to be pursued in your case, including deciding whether to settle your case.
- Show you courtesy and respect.
- Exercise independent professional judgment on your behalf, free from outside influence.
- Keep you informed about the status of your legal matter, responding promptly to your reasonable requests for information.
- Provide you with a complete copy of your file if it has not been provided to you during representation or if the lawyer should need to end the representation.
Your lawyer will expect you to:
- Provide a truthful and candid recitation of the facts surrounding your case and provide all materials and documents that may pertain to your case. A lawyer can only effectively help a client when there has been full disclosure. Promptly notify the lawyer of changed circumstances.
- Promptly respond to your lawyer's requests for information.
- Understand that your lawyer has other clients and that other clients are equally deserving of the lawyer's time and efforts.
- Set appointments in advance rather than show up at the office and expect to be seen.
- Be on time for all meetings and legal proceedings.
- Treat the lawyer and the law office staff with courtesy and respect.
- Communicate in a timely manner with the lawyer if you are unhappy regarding the representation and explain the reasons why you are unhappy.
- Refrain from asking the lawyer to engage in behavior that is inappropriate, unethical, unprofessional, or illegal.
- Pay the agreed-upon lawyer's fee in a prompt manner. If unforeseen circumstances arise concerning payment, inform the lawyer of the reasons for nonpayment. If you question any billing entries, you should let the lawyer know immediately.
- Notify your lawyer right away if you change your address, phone number, or other contact information.
Legal Fees and Costs
When you are talking about legal services, you need to understand the difference between "fees" and "costs."
Legal Fees refer only to the money you pay to the lawyer for the time spent by members of the legal team working on your case.
Costs/Expenses are the other charges involved in the handling of your legal matter that you will be required to pay to your lawyer in addition to legal fees. Your lawyer must give you, in writing, an explanation of the costs/expenses that you may incur. This written explanation may include other information, such as how you will be billed.
There are a variety of ways a lawyer charges for professional legal services. Frequently a lawyer will ask you to pay before the work is done. Sometimes the lawyer considers this payment to have already been earned when you pay it. Sometimes the lawyer will hold the money in a special bank account ("trust account") until the lawyer performs the work. The lawyer must tell you whether he or she considers the money to have been earned on receipt. The ways a lawyer charges for services include:
- The lawyer charges a set amount per hour for the time spent working on the legal issue.
- Most lawyers round off their work to the nearest tenth or quarter of an hour.
- Members of the legal team who have less training and experience than your lawyer will generally bill at a lower hourly rate.
- Your lawyer should tell you everyone who is likely to work on your legal matter and their hourly rate.
The lawyer agrees to take a specific percentage of the money you receive if you win the case or settle the matter out of court.
- If the lawyer does not collect any money, the client may not have to pay the lawyer for the time spent working on the case. You may, however, still be responsible for paying all costs and expenses incurred during your case.
- This type of fee is often used in personal-injury cases or other cases when you are suing to collect money from the person or entity responsible for injury or damage.
- Contingency fees cannot be charged in criminal cases, child custody matters, or dissolutions.
The lawyer charges a set amount to complete the legal assignment no matter how long it actually takes to do the job.
- This type of fee often is for routine legal matters such as preparing a simple will or filing a bankruptcy. When you agree to pay a flat fee, be sure you know what it does and does not include and if there could be additional charges.
A retainer can be used to guarantee that a lawyer will be available to take a particular case and could mean the lawyer would have to turn down other cases in order to remain available. A retainer fee can also mean that the lawyer is available to handle your legal issues over a specified period of time. Lawyers are unlikely to charge true "retainer fees" in most cases, but often require the payment of "advanced fees" to be held in a special trust account and billed against as they perform work while representing you.
The lawyer and the client agree that the lawyer will perform a specific and discrete task. Customarily, these representations require a much smaller upfront fee, as the lawyer may not be required to appear formally on behalf of the client or may do so only on a limited basis.
Who's Who in a Law Office?
Lawyers depend on a number of legal professionals to assist with handling your legal matter. That team could include:
- Nurse consultants
- Legal clerks
- Other lawyers
- Office managers
Like your lawyer, these people are required to keep information about your legal matter confidential.
Check with your lawyer to determine whom you should contact for information about the status of your legal matter.Remember that only a lawyer is ethically permitted to give you legal advice.
Your lawyer is still ultimately responsible for every aspect of your legal matter and must supervise the work of other team members.
Costs vary considerably from case to case, depending on the nature of your legal matter. They could include items such as filing or recording fees, mailing and copying costs, fax and long distance charges, fees necessary to hire outside consultants or experts, jury and witness fees, travel, electronic legal research charges, and couriers.
- The client, not the lawyer, is typically responsible for paying most costs.
- The lawyer may advance costs for the client but usually expects the client to pay the lawyer back for those costs.
- Your lawyer should be able to give you a reasonable estimate of the type and amount of costs that will likely be incurred in the handling of your legal matter.
- Request that your lawyer contact you with an explanation if there are any major changes in his or her estimate of the costs or time to be spent handling your matter.
- Your lawyer should also talk with you before making major expenditures, such as for an expert witness or outside consultant.
- Let your lawyer know that you want to be kept informed about costs as they accrue.
- Ask your lawyer to explain options you might have for holding costs down as much as possible.
There may be other types of fee agreements or variations of the ones described here. Ask your lawyer to explain your fee agreement to make sure you understand how it works.
Ways to Reduce Costs and Fees
Gather information before meeting your lawyer.
- Write down names, addresses, and telephone numbers of all the people involved in the matter.
- Be organized. Bring letters, documents, and papers that may pertain to your matter to your first meeting.
- Write down questions you want your lawyer to answer. (The "Questions You May Want to Ask Your Lawyer" appearing in this brochure will be helpful.)
- Keep your lawyer informed, but don't make unnecessary calls about minor details. If you are being charged an hourly rate, you are most likely being charged for your call.
- Be on time for appointments and court proceedings.
- Ask if you can reduce costs by obtaining documents, contacting witnesses, or providing other assistance.
- Keep track of all papers sent to you by your lawyer, including monthly billing statements and receipts for cash payments.
- Keep copies of any of your communications with your lawyer or others about the case.
What is domestic violence?
Domestic violence can take many forms, including physical, emotional, verbal, sexual, and financial. In general, domestic violence is any behavior used to gain power or control over a person. Domestic violence does not mean that your abuser must be a spouse or partner; an abuser can be any family member. For more information about different types of domestic violence and abusive behaviors, visit the Arizona Coalition to End Sexual & Domestic Violence.
Can the law help me if I'm the victim?
If you are in immediate danger, call 911. When the police arrive, tell them what happened. The police can help you get an Emergency Order of Protection (EOP), which can be granted by an on-call judge right on the spot and served on the abuser. An order of protection legally requires the abuser to stop contacting you and to stay a certain distance away from you. The court may also include other instructions and requirements that it believes are necessary for your protection. It is important to note that an EOP is only good until the close of the next judicial business day unless the on-call judge says otherwise. If you need protection for a longer period than that, you will need to apply for a normal order of protection.
You can apply for a normal order of protection during the superior court’s business hours. (You can find your nearest courthouse here.) This is done by filling out a written petition. You may also include any evidence you want the court to consider when deciding on whether to grant your petition. If the court grants your petition, it becomes effective as soon as your abuser is served with the order. Again, you can request that the police serve the order for you for free. The order of protection is valid for one year from the date of service. The abuser has the right to request a hearing with the court at any time while the order is effective. If the court grants the request for a hearing, you must attend to help protect the validity of your order. Keep a copy of your order of protection on you at all times.
Do I need to get an order of protection for my children, too?
You can include your children in your petition for an order of protection. If granted, the order will protect any person named in it. You do not need to file separate petitions for your children.
Will an order of protection really protect me?
Not necessarily. Even though the order of protection tells your abuser that he or she needs to stay away from you and to not have contact with you, that does not mean that your abuser will follow the rules. If you feel unsafe even though you have an order of protection, you should trust your instincts and seek additional help. Arizona has many shelters specifically for domestic violence victims aimed at protecting them and keeping their locations confidential. Please note that if you and the abuser have children, you should seek legal advice before hiding them or leaving the state with them because those actions may present legal problems for you.
Good resources for legal advice are:
- National Domestic Violence 24-Hour Hotline 800.799.SAFE (799.7233)
- Arizona Coalition to End Domestic Violence Legal Advocacy Hotline 800.782.6400
- Southern Arizona Legal Aid 520.623.9461
- Community Legal Services 602.2531536
What happens if my abuser violates the order of protection?
If you think you are in danger, call 911. But even if you do not believe you are in immediate danger, you should call the police. Violating an order of protection is illegal. Depending on the situation, the abuser may face consequences for doing so.
I don't know how to fill out court documents. Can someone help me?
Yes. Most courts have self-help centers where you can get the appropriate paperwork and have staff help you understand how to fill them out, although they cannot fill them out for you. Some organizations, like the Arizona Coalition to End Domestic Violence, offer free help as well. You can view and download electronic copies here. You can also find your nearest courthouse here.
I don't want my abuser to know where to find me. Do I need to put my address on court papers?
No, you do not. If your abuser does not know your location, you can request to the court to not provide your address on the petition itself. However, the court will still need to know your contact information, so you will need to give it to the court. The court will keep the document with your address on it separate and confidential.
How much does it cost to get an order of protections?
Nothing. It is completely free to apply for an order of protection. Unlike other court filings, the law prohibits the courts from charging any fee for these petitions. In addition, the law allows you to request that local law enforcement officers serve the order to your abuser for free.
Will I be reported to ICE if I apply for an order of protection?
Getting an order of protection does not require that anyone report you to ICE. However, that does not mean that it cannot happen. Anyone, including an angry spouse, can report you to ICE—you just need to know that it is not automatic just because you apply for an order of protection. In some situations, though, undocumented victims of domestic violence who are married to U.S. citizens or legal permanent residents can petition for special status. You should talk to a lawyer about the options.
Will my abuser be arrested?
An abuser will not be arrested if you get an order of protection. An order of protection is a civil—not a criminal—action by you against the abuser. An abuser will only be arrested if the police have "probable cause" to believe that he or she has committed the crime of domestic violence according to Arizona’s legal definition, which can be found here.
What if I don't have anywhere to go?
Many shelters are available throughout the state. You can find lists for the various shelters here:
City of Phoenix Domestic Violence Resources and Referrals - This site provides information on emergency shelters, shelter hotline, advocacy centers, State and National Services, Legal services, other services and outreach, and a links to local courts.
Maricopa Association of Governments Domestic Violence Council - This is a listing of various shelters within the cities of Maricopa County and includes shelter phone number.
Catholic Charities Community Services - This website links the various services provided by "My Sister’s Place" and includes a 24-hour hotline.
Sojourner Center - This organization provides shelter and support services to women, children, men, and pets affected by domestic violence and human trafficking.
Jewish Family & Children’s Service - This site provides information on their program Shelter Without Walls to assist male and female victims of domestic violence.
YWCA - This site provides information to various shelters throughout Metropolitan Phoenix including resources for both men and women.
Allie Phillips - This site provides links and information to shelters that can accept families of domestic violence along with their pets. While there is no guarantee that a shelter will have space for a given family or pet, they provide web links and phone numbers for people to check availability.
Raising Arizona Kids - This site provides various shelter options for families.
Do I need a lawyer? How do I find one?
Not necessarily. Resources below might be able to help.
- National Domestic Violence 24-Hour Hotline - 800.799.SAFE (799.7233)
- Arizona Coalition to End Domestic Violence Legal Advocacy Hotline - 800.782.6400
- Southern Arizona Legal Aid - 520.623.9461
- Community Legal Services - 602.253.1536
- AZ Law Help
- Volunteer Lawyers Program
- City of Phoenix Domestic Violence Resources and Referrals
Are there any additional resources?
- Domestic Violence Safety Plan Brochure
- Fresh Start Women’s Foundation - A nonprofit organization that helps women 18 and up focus on key areas of their lives by offering services, classes, and workshops designed to teach self-confidence, life skills, and career development.
- WomensLaw.org - Provides resources, including state, federal, and tribal laws on domestic violence and other family law issues.
- Arizona Department of Health Services - This site offers regional and statewide domestic violence resources and information as well as LGBTQ specific domestic violence resources.
Child Support FAQs
How do I request/establish child support?
You can file a Petition to Establish Child Support in the Family Court. Alternatively, in certain circumstances you may seeks the assistance of the Department of Economic Security (DES) to file a petition for child support on your behalf.
How do I modify and/or enforce current child support payments?
You may file either a Petition to Modify Child Support (Standard Process) or a Petition to Modify Child Support (Simplified Process) in the Family Court.
How can I enforce child support payments?
You may file a Petition to Enforce Court Order for Support in the Family Court.
How can I terminate child support?
You can file a Petition to Stop an Income Withholding Order in the Family Court.
What should I do if I can't locate my child's parent to request child support?
You must properly serve a parent with a Petition to Establish Child Support in order to compel that parent to appear in court. You might consider options available to you to locate the parent, such as hiring a private investigator or a process Server.
Do I have any rights as a grandparent?
In certain circumstances, an individual, such as a grandparent or other person who can demonstrate the existence of a beneficial relationship with the child, may be able to acquire visitation and/or legal decision making rights concerning a child.
Do I have to allow for parenting time if I'm receiving child support?
Generally, a child support order alone does not establish a parenting time schedule between the parents. A parent seeking a court order regarding parenting time should file a Petition to Establish Paternity, Legal Decision-Making, Parenting Time and Child Support or a similar document in the Superior Court.
How do I enforce court-ordered child support? Can I modify child support?
You may file either a Petition to Modify Child Support (Standard Process) or a Petition to Modify Child Support (Simplified Process) in the Family Court. You may file a Petition to Enforce in the Family Court.
What do I need to do if I'm relocating?
If you are involved in a pending Family Court action, you must keep the court informed of any change in your mailing address.
Child Custody FAQs
How do I prove paternity?
You may file a Petition to Establish Paternity, Legal Decision-Making, Parenting Time and Child Support in the Family Court.
How can I terminate father's/parenting rights?
You may not terminate a parent's parental rights in Family Court. Instead, you must file an action in Juvenile Court in order to terminate a parent's parental rights.
How can I request grandparent's rights?
You can file a Petition to Establish Visitation - For Grandparents Only.
What are my rights as a grandparent?
In certain circumstances, an individual, such as a grandparent or other person who can demonstrate the existence of a beneficial relationship with the child, may be able to acquire visitation and/or legal decision making rights concerning a child.
Can I travel outside of the country with my children?
Whether you may travel with a child outside of the country may depend on a number of factors including, but no limited to, whether the parents agree to such travel and whether there is a court order addressing that issue.
How do I resolve parenting time conflicts?
If the parties are in conflict over an established custody order and parenting time plan, options to resolve the conflict, depending on the circumstances in the particular case, include filing a petition with the court for an order resolving the issue or seeking the services of a private mediation.
Custody and guardianship modifications/petitions
The Family Court does not address guardianship matters. Therefore, you may neither establish nor modify a guardianship in Family Court. You must file a proper petition in Juvenile Court to address guardianship issues.
Parenting time modifications/petitions
You can file a Petition to Modify Parenting Time in the family Court.
Medical consent and decision making in legal matters
You can file a Petition to Establish Legal-Decision Making, Parenting Time and Child Support in Family Court.
A guide to Alternative Dispute Resolution
Settling your dispute out of court could help you avoid high costs and long delays. Alternative Dispute Resolution may be more desirable than going to court.
The American legal system is widely regarded as model for impartial dispute resolution. But, while the conventional trial remains the workhorse of the American judicial system, the system is oversubscribed, both at the federal and the state levels. Thus, getting a civil case to trial can take time, sometimes measured in years. Getting through the process can also cost a lot of money without any guarantee of success. The outcome of the case rests in the hands of people who may know nothing about the business or industry involved in the dispute; because of this, many people are not satisfied with the ability to gauge the likelihood of success.
These two shortcomings-the time it takes to closure and knowledgeable decision makers-are what alternative dispute resolution ("ADR") methods are aimed at. While there are minor variations, we will discuss the two most important ADR processes in this pamphlet: arbitration and mediation. Contrary to popular misconception, these terms are not synonymous:
- Arbitration is an informal yet adversarial proceeding similar to, but simpler than, a conventional trial, where an arbitrator takes evidence and makes a decision binding on both parties.
- Mediation is the attempt of a mediator to fashion resolution of the dispute through agreement between the parties; the mediator is not a judge, but more of a facilitator.
Arbitration is sometimes described as "private trial," where the process is paid for by the parties, rather than by the taxpayers, and the resulting award is usually confidential, unlike the public verdicts of trials paid for by taxes and possible costs to a party.
Arbitration Is Agreed To
Arbitration is a process agreed upon by the parties; if they haven't agreed to it, the arbitrator has no jurisdiction over them and has no authority to rule on their dispute. On the other hand, "regular" courthouse litigation commences when one party files a complaint against the other at the court, regardless of the latter's willingness to decide the dispute in this way.
Arbitration Is Less Formal
Arbitration is a lot more informal. The hearing is usually conducted in an ordinary meeting room, rather than a fancy courtroom. Sometimes there will be only one arbitrator, sometimes a panel of three. Witnesses are sworn as in a conventional courthouse trial, and the parties or their attorneys take turns presenting their evidence, as in a regular trial. The rules of evidence and civil procedure that strictly govern traditional courthouse litigation are relaxed and serve as only guidelines for the arbitrator.
Arbitrators Are Not Always Lawyers
In fact, one of the advantages of arbitration is that the parties can seek an arbitrator who is versed in the nature of the dispute. Thus, it is not uncommon for a contractor or an architect to serve as an arbitrator in a construction dispute; likewise, an accountant may be chosen to hear a dispute concerning a tax dispute or a financing dispute.
Arbitration Is Final
The award of the arbitrator is final; there can be no appeal, except in a few, rare circumstances. The parties agree to this finality when they agree to arbitrate their dispute. (However, mandatory court-annexed arbitration, held as part of courthouse litigation procedural rules, for the smaller civil cases in the courts, allows for an appeal.)
Arbitrators Are Paid
Like the public court system, where judges are paid by taxes, arbitrators are paid by the parties and usually charge by the hour. Their rates are normally set out in their biographies but, if not, you should not hesitate to ask about costs.
How Long Does It Take?
The length of an arbitration hearing depends entirely on the complexity of the dispute. Simple landlord-tenant arbitrations might take less than half a day. Hearings in complicated commercial or construction arbitrations may run for weeks. Usually, the time from commencement of arbitration to entry of a final award is much shorter than the time from filing a Complaint in courthouse litigation to a final determination.
All counties have a mandatory arbitration process. The threshold amount for mandatory arbitration varies from county to county, as determined by that county. These mandatory arbitrations are conducted by practicing lawyers who volunteer their time; there is no charge to the parties. In these cases, the arbitrator's award may be appealed by any party to the Superior Court, but there are significant penalties if the appealing party loses the appeal; these penalties are intended to discourage the appeal of mandatory arbitration awards.
The public often confuses mediation with arbitration, and it is common for people to believe they are the same thing. They are not.
Arbitration=Third Party Decision
In arbitration, the parties cast their fates to the decision of a third party--the arbitrator. The parties no longer have control over the outcome of the dispute, and each can only hope that the case he/she presents to the arbitrator is persuasive enough to win.
Mediation= Resolution by Agreement Between the Parties
In mediation, the parties maintain control over the outcome of their dispute because they control the decision making. The mediator is not a judge; the mediator is a facilitator whose job is to build consensus by helping the parties fashion solutions they both can live with instead of having a third party-either an arbitrator in the private system or a judge in the public system-deciding the outcome for them.
Mediation is not regulated by any state laws or by any mandatory industry standards (although there is one Arizona statute that provides for confidentiality related to mediation.) Thus, any person can hang up a sign and become a mediator, and it is this fact that can result in mediations that leave the parties dissatisfied. It is important, if you decide that mediation might be worth a try, that you check as to the experience of the mediators you are considering or choose a mediator from a professional ADR organization whose mediators are both trained and experienced, and whose biographies are given to you as part of the selection process. Such organizations often have an ethical code for their members.
Mediators Needn't Be Lawyers
Mediation, while seeming to be a legal process, does not require lawyers to conduct it. In fact, many mediators are professionals in various industries whose personalities and "people skills" have proven valuable in bringing together people with divergent views. Skills such as understanding the psychologies of anger, fear and revenge; the ability to listen objectively; knowledge of a particular business or industry; creativity in developing solutions; and the ability to act as a calming influence in inflamed settings are key ingredients to a successful mediator.
Mediators Are Also Paid
Like arbitrators, mediators are paid, usually by the hour. Their hourly rates are usually set forth in their biographies.
How Long Does It Take?
As you can imagine, how long a mediation takes-and whether it is even successful-depends on the good faith willingness of the parties and the extent to which they really want the mediation to work; that is, to really want to resolve the dispute. If one party is not of that mind, the mediation will certainly take longer and its chances of success are diminished.
Many of the Justice Courts in Arizona require the mediation of small claim lawsuits before the suit is ever allowed to be heard by the judge. In the Superior Court, divorce cases also must go through mediation before the judge will hear the case. The mediators in these cases are volunteers and, thus, the parties are not charged. Most judges in civil cases in the Superior Court will press the parties to go through mediation before a trial date will be set. There is a process in civil cases whereby a Superior Court judge can be tasked to convene a "settlement conference," which conference is similar to a mediation.
Where should I go for more information?
There are many ADR organizations that provide mediation and arbitration services and that actually manage the entire process for the parties. They charge fees for these services, but often this cost is well worth it, especially if you are not accustomed to arranging phone conferences, setting hearing dates, and exchanging documents with the other party before the hearing.
For help in finding an ADR organization, ask an attorney you know about ADR and how to go about arranging for it. Keep in mind that some arbitrators and mediators also choose to operate independently of ADR organizations or may do cases obtained from both sources. For independent ADR professionals, word of mouth may be the way you hear about them, so check around locally; the internet can also be helpful.
What is a guardianship?
A guardianship is the appointment by a court of an individual or entity to provide care and to make personal decisions for a minor or an incapacitated adult.
The person for whom a guardian is appointed is called a ward.
Generally, the ward is an adult who cannot make or communicate reasonable decisions for themselves to protect their own welfare because of some mental or physical condition, or because the ward is a minor.
Who may serve as a guardian?
An individual or an entity, like a private fiduciary (a person or an entity that holds a license to act as a guardian for someone and is paid to do so), may serve as guardian of a minor or of an incapacitated adult. In addition, the court can appoint the public fiduciary of the county to act as guardian for an incapacitated adult. The public fiduciary generally does not act as guardian for a minor.
For a minor, the court will appoint a person whose appointment will be in the best interest of the minor. A minor ward who is 14 years of age or older may nominate a guardian.
For an incapacitated person, any competent person may be appointed guardian. The law provides a list of priorities for appointment, although the court may appoint someone with a lower priority if such appointment is in the best interests of the ward. Someone already appointed as guardian in another county or state will have the highest priority. After that, the priority from highest to lowest includes the adult nominated by the ward (if the court believes the ward has the capacity to make an intelligent choice), a person nominated in the ward's power of attorney, the ward's spouse, an adult child of the ward, a parent of the ward or a person nominated in a Will, or any relative with whom the ward has lived for more than six months.
Before being appointed as guardian, the individual must provide background information to the court, such as any felony history, prior times the person acted as a guardian for someone, and other information.
How is a guardian appointed?
A guardian may be nominated by a Will, or by any interested person who files a petition with the court for appointment of a guardian. An incapacitated adult, or any person interested in that incapacitated adult's welfare, may petition the court for a finding of incapacity and the appointment of a guardian. Forms for obtaining the appointment of a guardian can be downloaded at superiorcourt.maricopa.gov by clicking on "self-service center" and on "forms".
Notice of the time and place of the hearing must be personally served on the potential ward and given to other persons specified by statute, who include the alleged incapacitated person's spouse, parents and adult children, anyone currently serving as guardian or conservator or who has care and custody of the person, anyone who has asked to be notified and, if there is no one to give notice, then the closest relative shall be given notice.
An adult ward who is named in a guardianship petition must be represented by an attorney. The ward may use an attorney with whom the ward has an established professional relationship or an attorney will be appointed by the court. The court must also appoint a physician and court investigator who must submit reports to the court before the hearing date, after interviewing the potential adult ward. The potential ward is entitled to be present at the hearing.
For a minor guardianship, there is no need for a physician's report, and no attorney is appointed for the minor. In addition, for this type of guardianship, the minor's parents must consent to the appointment of a guardian for their minor child.
In certain circumstances, the court may appoint a temporary guardian for a specific purpose and for a specified time period.
What are the duties of a guardian?
A guardian has powers and responsibilities similar to those of a parent. The guardian may make personal decisions for the ward relating to living arrangements, education, social activities, and authorization or withholding of medical or other professional care, treatment, or advice. The guardian must always make decisions that are in the best interests of the ward. The guardian must always make sure that the ward is living in the least restrictive environment in which the ward can remain safe.
A guardian must submit a written report to the court annually on the date of the guardian's appointment. The report must include information on the health and living conditions of the ward and a current physician's report.
Can appointment of a guardian be avoided?
Often if the adult has executed a valid Health Care Power of Attorney, Mental Health Care Power of Attorney, and Living Will (for end of life decisions), a guardianship might not be needed. These forms can be found at: azag.gov under "Life Care Planning" tools. An adult can only appoint an agent under a power of attorney if the adult is competent to understand the power of attorney document. However, even if an adult completes the powers of attorney and living will, he or she could still be subject to a guardianship proceeding. A guardianship petition can be filed with the court if someone believes the person nominated as the heath care power of attorney agent is not acting in the best interests of the incapacitated person.
What is a conservatorship?
A conservatorship is a court proceeding to appoint an individual, or an entity like a private fiduciary, to manage the financial affairs of a minor or an incapacitated adult who is unable to manage his or her own property or financial matters.
The person for whom a conservator is appointed is called a protected person.
Who may serve as a conservator?
An individual or an entity, like a private fiduciary, may be appointed as the conservator for a protected person. In addition, the court can appoint the public fiduciary of the county to act as guardian for an incapacitated adult or a minor.
Before being appointed as conservator, the individual must provide various background information to the court, such as any felony history, prior times the person acted as a conservator for someone, and other information.
How is a conservator appointed?
A petition for the appointment of a conservator is filed with the court. The petition may be filed by the person to be protected or by any interested person.
Notice of the time and place of the hearing must be personally served on the person to be protected and given to other persons specified by statute, with the same priorities as notice in a guardianship matter.
The adult to be protected must be represented by an attorney. The adult to be protected may use an attorney with whom the person to be protected has an established professional relationship or an attorney will be appointed by the court. The court must also appoint a physician and court investigator who will submit a report to the court before the hearing date, after interviewing the potential adult protected person. The person to be protected is entitled to be present at the hearing.
For a minor conservatorship, there is no need for a physician's report, and no attorney is appointed for the minor. In addition, the minor's parents can be appointed as conservator.
The court may also appoint a conservator for a single transaction or a limited purpose. The limitation is noted on the letters of appointment.
What are the duties of a conservator?
A conservator has the powers and responsibilities of a fiduciary. A conservator is held to the standard of care applicable to a trustee: which is that of a prudent person dealing with the property of another. A conservator must keep detailed and accurate records of all of the financial information of the protected person.
Within ninety days of appointment, the conservator must file with the court an inventory of the estate of the protected person. Annually, on the anniversary of the date of appointment, the conservator must file with the court an accounting of the administration of the estate that accurately reflects every financial transaction that occurred during the accounting period.
A conservator has power to invest funds of the estate and to distribute sums reasonably necessary for the support, care, education or benefit of the protected person. The conservator must pay from the estate all just claims properly presented against the estate and the protected person.
The conservator may use a protected person's money only for the benefit of the protected person. A conservator may not make gifts of the protected person's assets unless the court has issued an order that authorizes the gifts. A conservator cannot use the protected person's money to pay the conservator's bills.
If a conservator is acting improperly, an interested person may file a petition with the court asking the court to either replace the current conservator or ask that the court seek more information from the attorney for the incapacitated person, from the court investigator, or from a third party.
Can appointment of a conservator be avoided?
Sometimes a validly-executed Durable Financial Power of Attorney will enable the named agent to manage the assets of the incapacitated adult. If the incapacitated adult has a trust, a conservator may only need the limited power to retitle the assets to the name of the trust, so the trustee can then manage the assets for the benefit of the incapacitated person. Often, a financial institution will require that that institution's Power of Attorney form be used for an agent to manage an incapacitated person's account. An adult can only appoint an agent under a power of attorney if the adult is competent to understand the power of attorney document.