3926 North 13th Place
Herb Encinas d/b/a Moon Valley Builders,
Aida C. Suarez,
MOTION TO HAVE
PLAINTIFF’S COUNSEL REMOVED
(Hon. Judge J. Kenneth Mangum)
Pursuant to Supreme Court Rule 42, Ethical Rules 5.5(b), 8.4, (and other pertinent ethical rules), the Arizona State Bar Committee on Professional Conduct’s Op. Ariz. State Bar I99-07, Encinas v. Mangum, 365 Ariz.Adv.Rep. 39 (2001), Rules 12(g) and 11, Ariz.R.Civ.P., this Court is hereby moved to remove plaintiff’s counsel from this action. This motion is supported by the following Memorandum of Points and Authorities incorporated herein by this reference.
RESPECTFULLY SUBMITTED this 18th day of March, 2002.
3926 N. 13 Pl., Phoenix, Arizona
I. FACTUAL AND PROCEDURAL HISTORY.
On 1/15/02 the Arizona Court of Appeals published an Opinion on UPL as a direct result of a Special Action brought by The Eagleburger Law Group by and through Scot G. Teasdale, one of two opposition lawyers profiting off of this action. Said Opinion stated:
¶ 7: “… The superior court erred by allowing an unauthorized person to practice law.” [Footnote # 2 continues:] “Moreover, by doing so, the order may place Petitioner’s counsel at risk of unethical conduct by “assisting” in the unauthorized practice of law. Supreme Court Rule 42, Ethical Rule 5.5(b) provides that a lawyer shall not “assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” The Arizona State Bar Committee on Professional Conduct has concluded that a lawyer who negotiates or participates in arbitration with one engaged in the unauthorized practice of law violates Ethical Rule 5.5(b). Op. Ariz. State Bar I99-07. Participation in litigation is as problematic as participation in arbitration.” Encinas v. Mangum, 365 Ariz.Adv.Rep. 39, 40 (2001) (Emphasis added.)
Thus, the Court of Appeals concluded that a lawyer who participates in litigation with one engaged in the unauthorized practice of law violates Ethical Rule 5.5(b) because, to them, interaction with UPL is “assisting” UPL. Since publishing their Opinion Teasdale has continued to participate in the litigation by drafting about more than dozen lengthy responses (many 14 pages long) to what he calls “illegal products of UPL.” Teasdale has even stated it is “ridiculous,” “ludicrous,” “nonsense,” “a fallacious contention,” “a novel doctrine” that “cannot separate reality from fantasy” to state that interacting with UPL in writing with anything other than a Motion to Strike violates Ethical Rule 5.5(b). He has even said “there is no legal basis for this thesis” “in any statute, case law, or regulation.”
Strangely enough, Teasdale, an alleged trial attorney possessing a doctorate degree, is now referring to his own arguments from his own UPL Special Action regarding Ethical Rule 5.5(b) and the Court of Appeals own above stated, and now published opinion (i.e., precedent), in Encinas v. Mangum, 365 Ariz.Adv.Rep. 39 (2001) as “fantastical legal notions that exist nowhere,” “ludicrous” nonsense,” “a novel doctrine” that “cannot separate reality from fantasy,” with “no legal basis” “in any statute, case law, or regulation.” He has even referred to Ethical Rule 5.5(b) and the Court of Appeals’ above stated opinion in Encinas v. Mangum, 365 Ariz.Adv.Rep. 39 (2001) as “frivolous,” not a “law,” nor a “pertinent authority.” Recently, he has said this type of thing repeatedly in responsive pleadings.
When the first UPL Answer and Motion to Dismiss was filed 29 months ago his law firm responded with a Motion to Strike saying Shepard is not a lawyer so it should be stricken. That was the only time they didn’t address the merits. Teasdale later stated that the re-filed identical Answer and Motion to Dismiss was also evidence of more UPL which he and his partner did respond to, at length.
Teasdale further strains the patience of all involved by writing he has “every right to respond” substantively to the merits of the contents of “products of UPL” “pursuant to the Rules of Civil Procedure governing Motion practice.” This claim raises at least three issues: 1) He has not stated what specific rule or other such authority says he should get paid to draft pointless responses. 2) This contradicts Teasdale’s own position that all UPL paperwork is “legally defective” thereby requiring the courts to strike them summarily even with no response having been received, so why bother to respond at all? 3) Teasdale insists that over the course of the last 29 months, at no time have I, or my son non-lawyer Shepard ever complied with Rule 11, ARCP, not once, so why bother to respond? 
Teasdale even blames Judge Mangum for this, and not himself, by stating Mangum “would not grant a Motion to Strike UPL pleadings” as if he can read the mind of a Superior Court judge, anticipate rulings, and, as though he himself was not fully aware of Shepard’s UPL a full year before Mangum was even assigned to this case. This is all the more incredulous as if to suggest that Teasdale has never heard of a Motion for Reconsideration nor will he give Mangum the physical time he needs in order to make a ruling being that Motions to Strike preclude any need to respond unless and until said Motion to Strike is first ruled on. Rule 12(g), ARCAP, clearly states, “Upon motion made by a party before responding to a pleading … the court may order stricken …”. That is very, very significant and that, in part, is the legal basis for the statement that all of this law firm’s “responses” over the past 29 months have “assisted” UPL and violated the rules of court, even without the Court of Appeals input.
It should go without saying that if a lawyer believes a judge must rule a certain way, and they don’t, then there are remedies that can be pursued before responding to a pleading and, if a lawyer will not avail himself of those remedies “because a judge won’t grant my motion to strike” then that lawyer has voluntarily chosen to respond to “a product of UPL” because of their belief that the Court will consider and rule on that product of UPL. That lawyer is then, in his own opinion, complicit in “assisting” UPL by participating in that litigation via interaction / responses, whether written or verbal. Again, see § “I.” above.
It is one thing to make an honest mistake. It is another to pretend that it never existed and/or it does not now exist especially when you yourself have pointed out that mistake in the first place. It is also one thing for a lawyer to agree to follow rules of professional conduct and then to refer to a Court of Appeals published Opinion in agreement with their own position as nothing more than “ludicrous” “nonsense.”
Scot G. Teasdale and/or his partner, G. Gregory Eagleburger, in Teasdale’s opinion, should have never offered substantive responses to the merits of “products of UPL” over the past 29 months (just as they continue to do so). Eagleburger shares liability with Teasdale because each document they file has him listed as one of two “attorneys for the plaintiff” and are signed “By The Eagleburger Law Group” by and through Teasdale. Teasdale’s history of Shepard’s UPL presented in his own Statement of Facts in his own Petition for Special Action evidences this law firm’s long standing knowledge of Shepard’s UPL and their willing participation with it. Teasdale has even argued the Court of Appeals’ definition of UPL extends to motion practice so his firm has been violating Ethical Rule 5.5(b) by offering written responses.
This in addition to Teasdale’s own words to the Court of Appeals on 2/20/02: “either by granting the motions, or even by accepting them for consideration, will authorize Shepard’s continued UPL” which would “have the court violate its own order and opinion in this case, and Arizona Supreme Court Rule 31(a)(3). The best response, and indeed the only response appropriate to these motions is for the court to strike them both, as the product of the UPL.” He also said, “as the motions are confessed within themselves, proudly, to be the product of the Unauthorized Practice of Law. The court is therefore left with no choice. It cannot grant Shepard the right to pursue this illegal conduct, and any ruling on the motion or action other than striking the motion will de facto allow Shepard’s Unauthorized Practice of Law to continue.” Teasdale has yet to explain why the courts cannot consider UPL briefs by ruling on them while he can by offering substantive responses to them. A judge need not read a response to something that they will strike anyway as a product of UPL. To put it differently, if a judge should not consider or make a ruling on a brief that is the product of UPL then they need not read any response and the lawyer charging his client to produce one has erred. This principle is reiterated by Birth Hope Adoption Agency v. Doe, 190 Ariz. 285 (App.): “A motion to strike a motion for summary judgment that essentially challenges the merits of that motion is properly denied on that basis.”
Teasdale’s own “unwavering” (original) position has been that responding to UPL constitutes “interaction with” and/or “assistance of” UPL, pursuant to Ethical Rule 5.5(b), and other such authorities cited in his UPL Special Action. The last page of his Special Action asked the Court of Appeals to prohibit Shepard from “participating as an attorney in any form and order Judge Mangum to enter orders precluding Moses Shepard from further efforts in the litigation.” He even stated it was “de facto economic warfare” (for his client paying the bill) to “have to” respond to Shepard in writing, this, despite the fact that Judge Mangum said at a 3/16/01 hearing that neither side had to respond to anything until he gave the say-so in order to save costs when Teasdale complained about costs.
Teasdale also stated in his Special Action, “in Opinion 99-07, the Arizona State Bar Committee on Professional Conduct concluded that engaging in negotiations with an opposing party’s ‘adjuster’ who is engaged in UPL violates E.R. 5.5. Thus, particularly as Plaintiff’s counsel faces the prospect of an ethical violation by being forced to interact with Moses Shepard acting as Defendant’s attorney in this matter, and presumably will be required to prepare a Joint Pre-trial Statement, as well as the presumed requirement to interact with Moses Shepard as the Defendant’s counsel before and during trial, the court’s decision imperils Plaintiff’s counsel with an ethical rule violation.” In effect, Teasdale had claimed any interaction with Shepard violates Ethical Rule 5.5(b). Now he denies this.
Clearly, there is no substantive difference between a lawyer responding to UPL verbally or in writing. If “proceedings in a suit by a person not entitled to practice are a nullity, and if appropriate steps are timely taken the suit may be dismissed,” it only follows logically that any responses to the same are a nullity as well and, thus, an “ethical” violation. It was also less expensive to Teasdale’s client to file a second simple Motion to Strike instead of responding, at length, again and again, for 29 months. Teasdale should not have “needlessly increased the cost of litigation” by profiting off of UPL by responding to it, at length, as he continues to, to this very day, in violation of Rule 11, ARCP. There is no excuse for this law firm’s failure to have brought their UPL Special Action 29 months ago. Indeed, their $13,407 attorney’s fees charged to their client (which was denied by the Court of Appeals, perhaps, for the reasons contained in this brief) would have never been “necessary” to begin with because, in all probability Judge Howe would have struck again that original, re-filed “UPL” Answer if he had only been moved to do so by this law firm. It was Judge Howe that had sua sponte stricken that “UPL” Answer in the first place when Shepard answered as “Counsel for Defendant.” Teasdale’s own Statement of Facts in his own Petition for Special Action proves his law firm knew Shepard was still doing “UPL” for his mom due to the early motions (plural) in the action. (See said 9/25/01 Petition.) Through a letter written by Shepard, dated 1/28/00, Suarez even told Teasdale, “where it not for the trust that I have placed in my son, I would not be able to communicate with you or with the Court.” This could not have been more clear. After all, here Teasdale was being told Suarez was getting “UPL” help.
If all of this weren’t enough Teasdale has, just recently, tried to notice depositions on Suarez and Shepard. This was in violation of the rules of court for the following reasons: 1) There is a pending motion to vacate, which would make any depositions moot if granted. 2) There are other motions from both sides that would also make any deposition moot if granted. 3) Teasdale claims to be seeking a settlement but has yet to state any price or terms. Either way, settlements preclude more litigation. 4) Now that Teasdale has deprived Suarez of Shepard’s voice at trial through his Special Action, he has even gone so far as to seek a pretended default against Suarez by moving to strike Shepard’s “UPL” paperwork in this action in order to create the illusion that the Court never received any response from her (and that Teasdale has not been profiting off by replying to those responses for 29 months now and counting) and that the Court, itself, is not culpable for permitting “UPL” paperwork to be filed all that time thereby “assisting” UPL. Even more astonishing is the fact that Teasdale was prepared to accept a “Motion to Dismiss Counter-claim” prepared by Shepard, on Suarez’s behalf. He will, of course, claim the opposite, stating Suarez could have prepared and filed the same on her own behalf but he has yet to state how someone that is wholly ignorant of legal process may do so without help, unless Teasdale and his client are willing to wait for Suarez to get a J.D. so that she may be on a more or less equal footing.
II. THE CASE FOR MISCONDUCT AND OTHER ETHICS VIOLATIONS.
For lack of time to fully develop this section, the Court’s “indulgence” is requested to review all other pertinent rules of professional conduct and/or other authorities which Teasdale may have violated or continues to violate. For example, see Rule 42, Rules of the Arizona Supreme Court at:
E.R. 5.5: Teasdale has used it to “protect” Suarez but how can a defenseless woman protect herself now that Teasdale has used E.R. 5.5 to strip her of her only former court-approved protection?
E.R. 8.4: “It is professional misconduct for a lawyer to: (a) violate … the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another; …(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice” etc. Is Teasdale guilty of professional misconduct?
E.R. 1.1: Competence: How can Teasdale actually claim he has a “right” to do what he is doing?
E.R. 1.7: Conflict of Interest: How can Teasdale be acting to “protect” Suarez and his client?
Ethical Rules in general: How can Teasdale claim “ethics” in pushing for court-assisted theft, (i.e., leaving assets without a defender under the guise of E.R. 5.5)?
E.R. 3.3: Candor Toward The Tribunal: Who does Teasdale think he is fooling with all of this?
E.R. 3.1: Meritorious Claims / Contentions: How can one bring a contract case with no contract?
E.R 3.2: Expediting Litigation: Why didn’t Teasdale save his client from the expense of needless attorney’s fees by filing his UPL Special Action against Judge Howe 29 months ago, or seeking to change him as the judge when Howe accepted Shepard’s re-filed Answer and Motion to Dismiss with nothing more than Shepard’s signature replaced with Suarez’s, which Teasdale now says was more hard evidence of UPL in his own Petition for Special Action’s Statement of Facts at pg. 5, ¶ 6?
E.R. 3.4: Fairness To Opposing Party: Why is Teasdale currently pushing for depositions while he simultaneously claims his client wants to settle out of court and is also seeking an entry of default?
This Court is therefore respectfully requested to exercise its inherent power to remove plaintiff’s counsellors from this action for: 1) violating their ethical rules, 2) denying having done so, 3) unnecessarily and knowingly profiting off of UPL for 29 months, 4) calling the Court of Appeals and Arizona State Bar Committee on Professional Conduct’s Opinions on UPL [as expressed within I99-07 and Encinas v. Mangum, 365 Ariz.Adv.Rep. 39 (2001), respectfully] “ludicrous” “nonsense,” “a novel doctrine” that “cannot separate reality from fantasy” with “no legal basis” “in any statute, case law, or regulation,” “fantastical legal notions that exist nowhere,” etc., 5) violating Rule 11, ARCP, by “needlessly increasing the cost of litigation,” “bad faith arguments,” and similar ethical rules, 6) violating Rule 12, ARCP, which precludes the need for any response when filing a Motion to Strike, unless and until the judge first rules on that Motion to Strike, 7) feigning incompetence and/or demonstrating extreme incompetence. (This Court can decide for itself whether it is one, or both.) 8) committing professional misconduct as prescribed by Arizona Supreme Court Rule 42, Ethical Rule 8.4.
If their client then argues he would be unable to proceed on his own due to his ignorance of the law/legal process if his lawyers are removed, he is reminded Teasdale said Suarez “can present her case as well as a party represented by an attorney would” so his client should be able to do so as well as he speaks English and Teasdale has repeatedly equated the same with competency in the courts.
If this Superior Court will not remove plaintiff’s counsellors from this action, it is asked to please state its reason why in a minute entry so said order can be reviewed by the Court of Appeals that wrote the Opinion which Teasdale now mocks, even to the point of pretending it does not even exist. Teasdale says: “There has never been a case, or an ethics opinion, where opposing UPL created pleadings [by offering substantive written responses]… has been deemed assisting UPL.” (Emphasis added.) The Court of Appeals might disagree. They just wrote one. See Encinas v. Mangum, 365 Ariz.Adv.Rep. 39 (2001), Op. Ariz. State Bar I99-07, and Supreme Court Rule 42, Ethical Rule 5.5(b).
Of course, if this Court will not remove these two lawyers or censure them in any other way it has another option before it to stop the kangaroo court that they have been profiting off of for the past 29 months. It can dismiss this “case.” Where there is no meeting of the minds there can be no contract. The Court of Appeals and Supreme Court should not have to rule on the most obvious and fundamental issue of their alleged case because malpractice and ethics violations aside, no contract means no case.
Pursuant to Rule 80(i), ARCP, I declare under penalty of perjury that the foregoing is true and correct. Signed on this 18th day of March, 2002.
3926 North 13 Place, Phoenix, Arizona
ORIGINAL of the foregoing and copies filed with the Clerk of this Court this 18th day of March, 2002, and a COPY mailed and/or hand-delivered to:
Judge J. Kenneth Mangum
125 West Washington Street
Phoenix, Arizona 85003
The Eagleburger Law Group
2999 N. 44 St., Ste. 300
Phoenix, Arizona 85018
 This motion quotes, in large part, statements made within the “Plaintiff’s Response to Defendant’s Motion to Strike Opposition Responses Filed On February 15, 2002 And Plaintiff’s Motion to Strike Defendant’s Motion to Strike Opposition Responses Filed on February 15, 2002,” which was filed on or about March 5, 2002 (but incorrectly dated “February” 2002.)
 This motion is also made pursuant to the doctrine that the law cannot require an impossibility such as forcing Suarez to defend herself alone. Black’s Law Dictionary, 4th ed., defines an “impossibility” as “that which, in constitution and course of nature or the law, no man can do or perform. Klauber v. San Diego Street-Car Co., 95 Cal. 353, 30 P. 555.” It further states, “impossibilium nulla obligatio est. There is no obligation to do impossible things. Dig. 50, 17, 185; Broom, Max. 249.
 UPL means “the unauthorized practice of law” as that term is defined by the Court of Appeal’s 1/15/02 UPL Opinion.
 See Teasdale’s 3/5/02 “Response to Motion to Strike Opposition Responses Filed on February 15, 2002,” pg. 11, ln. 5.
 Supra, pg. 11, ln. 9.
 Supra, pg. 10, ln. 25.
 Supra, pg. 9, ln. 21-22.
 Supra, pg. 9, ln. 24.
 Supra, pg. 9, ln. 18.
 Supra, pg. 9, ln. 17.
 Supra, pg. 10, ln. 4.
 See Teasdale’s 3/5/02 “Response to Motion to Strike Opposition Responses Filed on February 15, 2002,” pg. 13, ln. 26.
 Supra,” pg. 1, ln. 20.
 See Teasdale’s 9/25/02 Petition for Special Action before the Arizona Court of Appeals, pg. 5, ¶ 6, in 1 CA-SA 01-0247.
 See Teasdale’s 3/5/02 “Response,” supra. pg. 10, ln. 19-20.
 U.S. v. Stepard, 876 F.Supp. 214 (D. Ariz. 1992).
 See pg. 5, ln. 25 to pg. 6, ln. 2 of “Plaintiff’s Response to Defendant’s Motion to Strike all Paperwork Produced by Non-Lawyer Moses Shepard in this Action” filed on 2/1/02 in CV 99-18701.
 See Teasdale’s 3/5/02 “Response,” supra. pg. 10, ln. 20-22.
 See Teasdale’s 2/20/02 “Consolidated Response,” pg. 3, ln. 19-22 and pg. 5, ln. 15-17, 1 CA-SA 01-0247.
 Supra, pg. 4, lns. 26-28 to pg. 5, ln. 1-2.
 Authorities he feels free to quote, acknowledge, overlook or disregard, at his pleasure, given his shifting position on UPL.
 See Teasdale’s 11/29/01 “Response to Motion for Suspension of the Rules,” pg. 3, ln. 10, 1 CA-SA 01-0247.
 Ironic, being that “costs” to his client are “profits” to him, so any “complaining” about costs from Teasdale is dubious.
 See Teasdale’s 9/25/01 Petition for Special Action, pg. 13, lns. 20-27.
 7 C.J.S. § 31, pg. 869.
 “Simple” because “it cannot be disputed that one who represents another in court, be he indigent or not, is, under our adversary process, going to the very core of the practice of law, a fact with which even the most uninformed persons are well aware.” (See pg. 4, ¶ 7, Court of Appeals 1/15/02 opinion quoting Hackin v. State of Arizona, 102 Ariz. 218, 221 (1967).)
 See Teasdale’s 2/15/02 “Response to Defendant’s Motion to Strike Opposition Paperwork Sua Sponte etc.,” pg. 10, ln. 14.
 See the 3/1/02 “Notice of Claim of Non-Parties at Fault etc.,” at its exhibit 1, ¶ 1 for a copy of that 1/28/00 letter.
 Two officers of the court.
 A 68 year old indigent pro per Spanish immigrant senior citizen grandmother surviving on social security proceeding in forma pauperis with hearing problems that lacks fluency in written or verbal English that is also ignorant of legal process.
 See Teasdale’s 2/15/02 “Response to Motion to Dismiss Due to Inability to Respond Meaningfully, etc.,” pg. 10, ln. 7-8.
 See Teasdale’s 3/5/02 “Response,” supra. pg. 11, ln. 2-4.