Rules of Professional Conduct Related Ethical Opinions

1.4  Communication

15-01: Plea Agreements; Waiver; Ineffective Assistance; Conflict of Interest; Criminal Representation

The conflict-of-interest rules prohibit a defense attorney from advising a criminal defendant to waive the defendant’s right to raise that attorney’s ineffective assistance of counsel. The ethical rules also prohibit a prosecutor from insisting that a defendant waive the right to raise ineffective assistance of counsel and prosecutorial misconduct claims. Opinion 95-08 is accordingly withdrawn.

15-02: Client Files; Safekeeping of Property; Maintaining Client Files; Termination of Representation

Lawyers are ethically obligated, upon a client’s request at the conclusion of representation, to provide the client with the client’s documents and all documents reflecting work performed for the client.  This obligation does not require the lawyer to retain paper or electronic documents generated or received in the course of the representation, that are duplicative of other documents generated or received in the course of the representation, incidental to the representation, or not typically maintained by a working lawyer, unless the lawyer has reason to believe that, in all the circumstances, the client’s interests require that these documents be preserved for eventual turning over to the client at the conclusion of the representation.  Understanding the lawyer’s duty to preserve client documents in this manner advances client interests. It enables a lawyer to restrict “the file” to documents that actually assist the lawyer in competently and diligently representing the client, in the context of the particular client matter and the lawyer’s practice, as well as effectively communicating with the client and exercising professional judgment on the client’s behalf, rather than preserving anything and everything ever generated or received during the course of the representation. To the extent prior opinions of this Committee may be construed as asserting otherwise, they are withdrawn.

10-03: Fees; Fee Agreement; Non-Refundable Fees; Flat Fees

Provided that the overall fee is reasonable, it is ethically permissible to charge a minimum fee that may be designated “earned upon receipt” or “non-refundable” with the language required by ER 1.5(d), for a specified number of hours or through completion of the matter, whichever occurs first, and also to include a provision that, under certain reasonably defined changed circumstances, the lawyer reserves the right to charge the client on an hourly basis for the remainder of the matter.

10-02: Communication with Clients; Departing Lawyer; Law Firm's Obligations

When a lawyer’s employment with a firm is terminated, both the firm and the departing lawyer have ethical obligations to notify affected clients, avoid prejudice to those clients, and share information as necessary to facilitate continued representation and avoid conflicts.  These ethical obligations can best be satisfied through cooperation and planning for any departure.

08-02: Client Files; Confidentiality of Information; Safekeeping Property; Duty as to Client Property

Lawyers have certain ethical obligations in maintaining closed client files.  Clients are entitled to most of the contents of a closed file.  Lawyers should establish a file-retention policy and communicate that policy to the client, in writing, at the commencement of the lawyer/client relationship.  If a lawyer does not have a file-retention policy, the lawyer will have additional ethical obligations to fulfill prior to the destruction of any closed client file.

07-01: Communications with Client's Family or Friends

A lawyer has no per se duty to provide information about a client’s case or upcoming trial to the client’s family or friends.  The lawyer may provide this information if the client gives informed consent or consent is impliedly authorized in order to carry out the representation. Depending on the circumstances, however, the lawyer’s ethical duty to provide competent representation to his/her client may require such contact.  It is a balancing test.  This opinion assumes that the client is a competent adult.

06-07: Communication; Settlement Authority; Fee Agreements; Conflict of Interest

A lawyer may not ethically ask a client to authorize the lawyer to unilaterally decide whether to settle the client’s case if the client disappears or the lawyer is otherwise unable to communicate with the client. A lawyer also may not ask a client for authority to sign drafts or releases necessary to finalize a settlement obtained under such circumstances.

06-01: Sale of Law Practice; Communication; Confidentiality; Covenants/Restrictions on Right to Practice

A lawyer seeking to sell his or her solo law practice may disclose limited client-specific information to the prospective lawyer-buyer without client consent to the disclosure.

The selling lawyer must sell at least an entire legal area of practice throughout the geographic area or areas where that practice is being conducted. After the sale, the selling lawyer may be able to resume practicing law, depending on what part of the lawyer’s law practice was sold.

The selling lawyer may not seek through contractual provisions to avoid prohibitions in the Ethical Rules on his or her ability to practice law after the sale. Nonetheless, the parties may negotiate a covenant not to compete and/or a covenant not to solicit within the sale contract.

The selling lawyer may supplement his or her notice of sale to clients with additional information as long as the notice at least meets the requirements of ER 1.17.

01-11: Billing; Unauthorized Practice of Law; Nonlawyers; Employees of Lawyer

A law firm may only contract with an agency that would assist firm clients in preparing forms for medical benefits if: a) the clients are informed about the costs of such support services; and b) the lawyers adequately supervise the work of the Agency (and review the forms) to assure that the Agency's conduct is compatible with the lawyers' ethical obligations.[ERs 1.4, 1.5, 1.6, 5.3, 5.5]

01-08: Withdrawal from Representation; Missing Clients; Communication with Client

When a client moves and fails to communicate with his lawyer, the lawyer may withdraw from the representation if the lawyer uses reasonable efforts to: 1) locate the client to inform him of the withdrawal; and 2) protect the client's interests upon withdrawal, including maintaining client confidences and safeguarding client property. [ERs 1.4, 1.6, 1.15, 1.16(b)]

01-02: Confidentiality; Disabled Clients; Communication with Clients; Disclosure

When a lawyer learns information during the course of representing an incapacitated person, a vulnerable adult, or someone who owes a fiduciary duty to such a person that is required to be reported under A.R.S. § 46-454, the lawyer ethically may disclose the information to authorities. [ERs 1.4, 1.6]

00-04: Recorded Conversations; Advice to Client; Divorce

An attorney may ethically advise a client that the client may tape record a telephone conversation in which one party to the conversation has not given consent to its recording, if the attorney concludes that such taping is not prohibited by federal or state law. [ERs 1.2(d), 1.4(b), 2.1]

99-14: Withdrawal from Law Firm; Communication with Clients; Advertising and Solicitation

A departing lawyer may contact persons for whom the lawyer has provided legal services while employed by the former firm. The restrictions of ER 7.3(a) do not apply where the lawyer has had significant personal contact with those persons although the content of the communication remains subject to ER 7.1(a) and 7.3(d)(2), (3). Moreover, a solicitation letter sent to former clients is not subject to the requirements of ER 7.3(b), although it must conform to the advertising requirements of ER 7.1. Where the departing lawyer has had significant personal contact with a client in connection with the provision of legal services to that client by the firm, the lawyer has a mandatory duty under ER 1.4 to notify the client of his or her departure. The client must be provided with the opportunity to choose between going with the departing lawyer or remaining with the firm. As noted, there are potential legal issues associated with contacting clients served while employed by the former firm, which are outside the jurisdiction of the Committee, but which should be considered in connection with any communications. [ER 1.4, 5.6, 7.1, 7.3]

99-02: Fees; Retainer Fees; Fee Agreements; Retainer Agreements

A non-refundable fee is ethical if reasonable under E.R. 1.5. A client must be fully informed about and expressly agree to such a fee, preferably in writing. Non-refundable fees are earned upon receipt and do not go into a lawyer's trust account. [ER 1.4 (b), 1.5, 1.15, 1.16 (d)]

98-07: Client Files

This opinion discusses an attorneys responsibilities for a client's file after termination of representation. [ERs 1.4, 1.15, 1.16]

97-06: Communication with Client; Advice to Client; Criminal Representation

A lawyer who has a client that is considering entering into a cooperation agreement with a law enforcement agency has an ethical obligation to determine all relevant facts that should be weighed in such a decision, including the availability of protection for the client, and must advise the client, candidly, of the risks associated with the client's proposed cooperation.  [ERs 1.1, 1.4, 2.1]

97-05: Confidentiality; Attorney-Client Privilege

The presence of a third person, such as an interpreter, parent or advocate during an attorney-client conversation does not affect the lawyer's duty of confidentiality under ER 1.6. [ERs 1.4, 1.6]

94-10: Legal Fees; Percentage Surcharge

Lawyer may charge percentage surcharge in lieu of billing actual expenses and costs if agreed to in writing, approximates actual costs, and overall fees are reasonable.

94-02: Retainer Agreement; Representation; Fees and Files

Attorney's proposed contingent-fee agreement violates Rules as to: 1) limiting client's right to discharge attorney; 2) attorney's right to withdraw unilaterally; 3) attorney's overbroad authority; 4) method of calculating fee; and 5) attorney's withholding client files after termination of representation.

94-03: Insurance; Representation

An attorney retained by an insurance company to represent an insured owes primary allegiance to the insured. That allegiance requires the client's consent before the attorney may file a motion for summary judgment in a third party matter that would benefit the insurance company but could be disadvantageous to the insured.

93-14: Safeguard Property; Confidences; Tape Recordings

Opinion considers what an attorney should do with a tape recording given to the attorney by a client when the tape is a recording of telephone conversations made by client's spouse to other individuals including the spouse's former attorney in a prior divorce. The tape was not obtained illegally. The opinion concludes that the attorney may review the contents of the tape, with the client's informed consent and the attorney may have a duty to safeguard the tape and must advise the client of limitations on the attorney's conduct. One dissent.

93-05: Employment of Non-Lawyers; Trial Consultants

Lawyer may employ a non-testifying trial consultant, and pay him a prearranged bonus fee of if the case settles or is won at trial, subject to certain guidelines.

91-10: Safekeeping Property

Attorney may apply court-awarded attorney's fees and costs to the balance owed him if client is not responding to repeated telephone calls and letters.

88-02: Scope of Representation; Truthfulness in Statements to Others

If an attorney is satisfied that a third party has a valid lien against the settlement of the attorney's client, the attorney should pay the funds accordingly.

87-19: Confidentiality; Communication

The juvenile public defender who learns that conversations between attorneys and detainers at the juvenile detention facility are monitored by detention staff personnel has an ethical duty to represent the juvenile the same as any other client. That duty extends to protecting the juveniles right to effective counsel, which includes privileged communications.

87-05: Scope of Representation; Advisor; Misconduct

Attorney may advise client arrested for DWI to refuse to submit to chemical tests, the preferable course, however, is to advise client of consequences for such conduct.

86-02: Scope of Representation; Diligence; Termination

Attorney appointed by juvenile court encountering problems in his attempted representation of client due to minor's parents intervention and minor's lack of cooperation.