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.
Lawyers providing an online file storage and retrieval system for client access of documents must take reasonable precautions to protect the security and confidentiality of client documents and information. Lawyers should be aware of limitations in their competence regarding online security measures and take appropriate actions to ensure that a competent review of the proposed security measures is conducted. As technology advances over time, a periodic review of the reasonability of security precautions may be necessary.
Lawyer-client relationships sometimes end earlier than the lawyer and client anticipated at the start of the representation. A lawyer’s withdrawal from representation is not always agreed upon by the client and may also be under touchy circumstances, such as dishonesty of the client or non-payment of fees owed to the lawyer. Further, a client may fire a lawyer at any time, for good or bad reasons. A lawyer faced with such situations must uphold the lawyer’s ethical responsibilities to the client despite that the representation is at, near, or has reached an end. Client confidentiality must be protected unless the ethical rules specifically allow disclosure, and any disclosures must be made as narrowly as possible. If, in a court setting, the tribunal does not allow the withdrawal, the lawyer can seek relief from a higher court, but must protect the client’s interests and competently represent the client until and unless an order for withdrawal is granted. A withdrawing lawyer must advise the client and new counsel of pending court dates, status of the case, and anything else necessary and appropriate for the smooth transfer of the representation. Any fees charged to the client for withdrawal-related work must be reasonable. Of course, the client is entitled to the client file regardless of the circumstances for the withdrawal.
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.
After the Committee on the Rules of Professional Conduct issued this opinion, the Supreme Court of Arizona amended ER 1.15 and Rule 43 to allow lawyers, under certain circumstances, to take credit cards for advance fees and costs. Click here for the link to the Supreme Court of Arizona's website.
A lawyer may accept credit-card payments only for earned fees, earned-upon-receipt retainers, or reimbursement for advanced costs. Such credit-card payments may not be deposited into the lawyer’s trust account. , A lawyer may not accept payment in advance by credit card for unearned fees or costs not yet advanced. , A lawyer may receive a single, non-cash payment from a client consisting of funds belonging partly to the client and partly to the lawyer. , Such a payment must occur by check, money order, or electronic-fund transfer, and must be deposited into the lawyer’s trust account. , After the transaction has cleared the issuing bank, the lawyer’s portion must be removed promptly from the trust account.
While modern electronic communications are often greatly beneficial to the client, lawyers who use them to send or receive documents or other communications on behalf of clients must be aware that they carry certain risks. Lawyers must take reasonable precautions to prevent inadvertent disclosure of confidential information.
Except in the specific circumstances described in this opinion, a lawyer who receives an electronic communication may not examine it for the purpose of discovering the metadata embedded in it.
The representation of multiple clients in a single litigation matter is generally permissible so long as the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each client, the representation does not involve the assertion of a claim by one client against another client, and each client gives informed consent, confirmed in writing. Ethical Rule (“ER”) 1.7(b). The requirement of informed consent arises only if, as an initial matter, the lawyer determines that the lawyer can, in fact, competently and diligently represent each client in the particular matter. Once that determination is made, the lawyer bears the burden of showing that there was adequate disclosure to each client and that each client gave an informed consent.
The disclosures required to obtain the client’s “informed consent” will depend on the facts and circumstances of the particular matter. The lawyer must explain the possible effects of the common representation on the lawyer’s obligations of loyalty, confidentiality and the attorney-client privilege. In addition to the confirming writing required by ER 1.7(b), informed consent usually will require that the lawyer explain the advantages and disadvantages of the common representation in sufficient detail so that each client can understand why separate counsel may be desirable. Finally, during the course of the matter, the lawyer must continue to evaluate whether conflicts have arisen that may require additional disclosures and consent or withdrawal from the representation.
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.
A lawyer may provide mortgage/refinancing services separate from the lawyer’s law firm so long as the proper disclosures are made, including that the lawyer is not providing legal services and the customers do not have the protections of the lawyer-client relationship. Referrals of clients must meet the “heavy burden” of compliance with ERs 1.7 and 1.8(a). Lawyers from separate law firms may participate as loan officers in the separate mortgage/refinancing company without imputed conflicts of interests for their law firms’ clients. However, these lawyers must not only make proper disclosures, but each lawyer also must determine whether the lawyer’s personal interests materially limit the lawyer’s professional judgment and whether any information known by the lawyer from these professional and business relationships creates any conflict of interest such that the lawyer may not proceed in any particular circumstance. Confidentiality requirements for clients and former clients also must be strictly followed.
An attorney who limits the scope of representation and coaches the client or ghost writes papers must direct the client to be truthful and candid in the client’s activities. While an attorney is not required to disclose to opposing counsel that the attorney is providing limited-scope representation, the attorney must maintain client confidentiality if doing so.
In the context of a prepaid legal services program, attorneys may not release confidential or privileged information to a third-party auditor without the client's informed consent. Because billing information often contains confidential information, contractual provisions requiring an attorney to allow, without exception, third parties to review the client file and billing records violate ER 1.6(a).
An attorney may agree to represent a client under a prepaid legal services agreement that limits the presumptive compensation allowable for "basic" legal services if the attorney complies with ER 1.8(f)(2), including determining that the limit on payment does not interfere "with the lawyer's independence of professional judgment or with the client-lawyer relationship." When agreeing to accept third-party payments, the attorney must be careful to abide by the client's "decisions concerning the objectives of representation and ... whether to settle a matter." ER 1.2(a). An attorney's agreement to limit compensation from a third party does not limit the attorney's duty provide a diligent and thorough representation of the client.
Provisions in a prepaid legal services contract between a client and the issuing trust do not excuse a lawyer's compliance with applicable ethical rules. An attorney may not enter into a contract that requires the attorney to violate his or her ethical duties.
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.
ER's 1.6 and 1.1 require that an attorney act competently to safeguard client information and confidences. It is not unethical to store such electronic information on computer systems whether or not those same systems are used to connect to the internet. However, to comply with these ethical rules as they relate to the client's electronic files or communications, an attorney or law firm is obligated to take competent and reasonable steps to assure that the client's confidences are not disclosed to third parties through theft or inadvertence. In addition, an attorney or law firm is obligated to take reasonable and competent steps to assure that the client's electronic information is not lost or destroyed. In order to do that, an attorney must be competent to evaluate the nature of the potential threat to client electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end. An attorney who lacks or cannot reasonably obtain that competence is ethically required to retain an expert consultant who does have such competence.
This opinion reviews the ethical dilemma posed when an attorney learns that, due to a former client’s apparent perjury in a civil proceeding, the attorney has offered false material evidence to a tribunal. The Committee concludes that the Arizona Rules of Professional Conduct, under the facts of this case, provide that the attorney’s duty of candor to the tribunal overcomes the ethical duty of preserving the former client’s confidences and that the attorney must take reasonable remedial measures effective to undo the effect of the false evidence with respect to the affected tribunal.
An attorney representing a client may enter into an agreement limiting the scope of services to a specific and discrete task. An attorney is required to have sufficient knowledge and skill to provide reliable counsel to the limited scope client as to the advisability of the action requested by the client. The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona.
An attorney representing a client in settlement of a lawsuit may not give the client’s spouse legal advice about waiving any right in a release unless the client and spouse both agree to joint representation and waive the potential conflict. Absent joint representation, the attorney may not provide legal advice to the spouse, even if the release requires the spouse’s signature and the spouse’s rights are affected by the release. If the spouse is unaware of the lawsuit or the settlement and release, the lawyer must take care to avoid any implied false statement by the client to the spouse, as well as any failure by the client to disclose material facts to the spouse.
An attorney does not owe a duty of confidentiality to individuals who unilaterally e-mail inquiries to the attorney when the e-mail is unsolicited. The sender does not have a reasonable expectation of confidentiality in such situations. Law firm websites, with attorney e-mail addresses, however, should include disclaimers regarding whether or not e-mail communications from prospective clients will be treated as confidential. [ERs 1.6, 1.7]
A lawyer may form a business entity for various individuals and be counsel only for the yet-to-be-formed entity, if appropriate disclosures and consents occur. Alternatively, a lawyer may represent all of the incorporators, collectively, with appropriate disclosures.
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]
This Opinion discusses the possible conflicts of interest when a public defender and law enforcement officer have a personal relationship.
Prosecutors ethically may reveal substance of discussions with law enforcement witnesses; such discussions are not considered “client confidences” under ER 1.6.
A lawyer who discovers while a criminal appeal is pending that his client used a false name in the trial court must advise his client that he cannot use a false name with the appellate court; if the client insists on using a false name, the lawyer should seek to withdraw, but not reveal the client’s use of a false name. If the motion to withdraw is denied, counsel must proceed but cannot rely upon or argue the client’s false statement in any further representation.
A group of lawyers who share an office suite but are separate firms may share a common phone number for communications with Spanish-speaking prospective clients and hire a common receptionist simply to route calls to lawyers in the group based upon practice area without being deemed a "referral service." Such an arrangement appears to be group advertising. If the receptionist's only interaction with the prospective clients is to forward the calls to the appropriate attorney, then his or her common employment by the separate firms probably will not impute conflicts among the group members. [ERs 1.6, 1.10, 5.3, 7.1(r)(3), 7.5]
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)]
This Opinion discusses a lawyer's ethical obligations not to use information obtained by a client in a civil case from documents copied from the records of a potentially adverse party that contain privileged or otherwise confidential information without the consent of opposing counsel or court order. The lawyer also must advise the client to refrain from obtaining other privileged documents and notify opposing counsel of the receipt of the information. [ERs 1.2, 1.6, 1.16, 3.4, 4.1, 4.4, 8.4]
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]
The Opinion discusses the ethical duty of "confidentiality" when a lawyer is requested, by a subpoena, to disclose information related to his representation of a client, when the client does not authorize the disclosure. [ERs 1.6(a), 8.4]
A lawyer appointed solely as guardian ad litem for a juvenile where the juvenile has separate counsel is not in an attorney-client relationship with the juvenile and, therefore, not bound by ER 1.6's ethical duties of confidentiality. See Ariz. Op. 86-13 for the ethical issues posed when a lawyer is appointed as both counsel and guardian ad litem for a juvenile. [ERs 1.2, 1.6, 1.14]
This Opinion reviews the ethical quandaries caused in criminal plea agreements when a lawyer’s duty of confidentiality may be in conflict with a lawyer’s duty of candor to the court in a variety of factual scenarios. [ERs 1.6, 3.3]
It is unethical for an attorney representing a client in pending litigation to file a lawsuit against that client, while the representation is continuing, for the collection of attorney's fees and unpaid costs. [ERs 1.6(d), 1.7, 1.16(a)]
Insurance defense lawyers ethically cannot participate in an audit review program by an insurance carrier's outside auditor where the program requires: 1) disclosure of confidential information about the client/insured (without the client's informed consent); 2) restricts the lawyer's independent professional judgment by limiting the services the lawyer may perform; and 3) grants the auditor permission to review client files. [ER 1.6(a), 1.7(b), 1.8(f), 5.4(c)]
In personal injury cases, a lawyer should have insurance proceeds reported as paid in full to the firm, with the firm then issuing a 1099 form to the client to protect the confidentiality of the actual distribution, unless the client consents to such disclosure. [ER 1.6]
A lawyer ethically cannot accept a fee from an investment adviser for referring clients of the lawyer to the adviser. Such a referral arrangement would present a conflict of interest for the lawyer, in violation of ER 1.7(b). [ER 1.6, 1.7, 1.8]
An attorney ethically may contract with a paralegal to have the paralegal assist with conducting initial interviews of and signing of documents by estate planning clients, as long as: 1) the attorney supervises and controls the paralegal’s activities to assure that the paralegal does not engage in the unauthorized practice of law; 2) there is no fee sharing; 3) the initial interviews are only with existing clients; and 4) there is no solicitation of new business by the paralegal. [ER 1.6, 5.3, 5.4, 5.5, 7.3]
This opinion discusses a lawyer's ethical obligations when he/she desires to sell his client accounts receivable to a factor with the consent of each client after consultation. [ERs 1.6, 1.7, 1.8, 5.4]
A public defender ethically may disclose information requested on a court initial status report regarding certain information about meeting with the defendant, production of discovery, and review of plea offers. [ERs 1.2, 1.3, 1.6, 3.3, 3.8, 8.4]
The filing of an affidavit of ineffective assistance does not necessarily require reporting under ER 8.3. The lawyer still must use the analysis set forth in ER 8.3 to determine on a case-by-case basis whether the ineffective assistance raises a substantial question as to defense counsel's honesty, trustworthiness, or fitness. [ERs 1.1, 1.6, 8.3]
An attorney who works on a contract basis for more than one law firm will be considered an associate of each firm for conflicts and confidentiality purposes unless: (1) there is a written agreement that limits the scope of the contract attorney's work to a particular client for a particular project (specifying that the relationship will terminate at the end of the project or at a particular time or upon the occurrence of a particular event); and (2) the contract attorney will not have general access. [ERs 1.6, 1.7, 1.8, 1.9, 1.10]
A lawyer who is also an accountant may indicate both professional titles on his legal stationery, but: (1) the business must remain separate (financially and for advertising purposes although they may "reside" in the same physical location); (2) the non-legal business may not be used as a "feeder" for the law firm (i.e. clients of the non-legal business should not be solicited for legal work); (3) clients who are referred to the non-legal business must be advised of the lawyer's interest in the accounting firm and that the attorney-client privilege does not extend to the accounting work; (4) appropriate safeguards must be in place to assure against breaches of confidentiality and conflicts for the legal practice; and (5) the lawyer should not indicate that he is a lawyer in his accounting advertisements unless he complies with the Ethical Rules on advertising. [ERs 1.6, 1.7, 1.8, 5.4, 7.1, 7.5]
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]
This opinion discusses several ethical issues with respect to lawyers using the Internet to communicate including, for example, confidentiality concerns when sending email to a client, advertising considerations for websites and the applicability of Arizona's Rules of Professional Conduct to communications disseminated from or received in Arizona [ERs 1.6, 1.7, 5.5, 7.1, 7.2, 7.3, 7.4, 7.5]
Lawyers should use caution when communicating about confidential matters on portable telephones. [ER 1.6]
Provisions in an attorney's severance agreement that impose confidentiality restrictions on the departing in-house counsel do not impermissibly restrict the attorney's ability to practice law in the future as long as the provisions merely reaffirm the requirements imposed by ER 1.6 on disclosure of confidential information. [ER 1.6, 5.6]
An attorney asked by a court about the availability of the client for trial must maintain the confidentiality of all information relating to the representation. However, counsel may disclose the intention of a client not to appear only if: (1) the attorney has actual knowledge that the client will not appear; and (2) the act is willful and not the result of mistake or inadvertence. [ERs 1.2, 1.6, 3.3]
The inquiry pertains to ethical considerations when a lawyer previously represented a court appointed mental health professional expert witness several years ago in an unrelated matter. The Opinion concluded that the lawyer: 1) is not required to disclose the prior representation absent some showing that the former relationship predisposes the expert in some unusual way to favor the expert's former attorney; and 2) need not withdraw from the present representation unless there is some unusual bias on the expert's part or the lawyer is restricted in cross-examining the expert due to the prior representation.
An attorney must have the prior consent of a client before disclosing client confidences to a credit reporting agency or a collection agency that uses a credit reporting agency. An attorney is responsible for assuring that a collection agency exercises the same ethical integrity that the lawyers must.
A lawyer may refrain from or delay reporting misconduct of his client's former lawyer, at the request of the client, when the underlying information upon which the complaint would be based was disclosed to the inquiring attorney during the course of representation and, therefore, is protected by ER 1.6. Since the situation does not involve an exception to the confidentiality rule, ER 1.6 trumps ER 8.3 and the facts cannot be disclosed.
Discussion of attorney's obligation and duties of confidentiality when he believes another attorney has charged an excessive fee.
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.
A lawyer referral program that derives profits from subscription fees paid to it by organizations such as employers and unions is in compliance with the Ethical Rules where participating attorneys would pay a one-time fee for listing in a directory.
Previous in-house counsel for insurance company may subsequently undertake representation adverse to company if dispute arose after attorney left company.
Attorney may not instigate criminal prosecution against former client who pays fees with NSF check.
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.
Attorneys in Attorney General's office may ethically handle pro bono cases for Volunteer Lawyers Program if appropriate screening for conflicts occurs.
Ethical responsibility to advise court of potential client perjury.
Lawyer may disclose confidential information to the extent necessary to refute former client's public assertions that the lawyer engaged in misconduct.
Sole practitioner proposes to turn over his law practice to a law firm while he goes on a one-year leave of absence. Discussion of whether a law practice has a salable goodwill. (Invalidated by Op. 06-01)
Criminal defense attorney's client is using two different names in two different criminal proceedings. Committee discusses whether the attorney has an obligation to inform the court.
Law firm may not furnish to a bank a list of its accounts receivable identifying the names of the clients and the amount each client owes, except to the extent the clients consent after consultation.
Committee discusses when an attorney may disclose his client's threat to commit suicide after the conclusion of one lawsuit.
Release, preservation or destruction of clients' financial and business documents when client cannot be located.
Responsibilities of attorney representing worker's compensation claimant, when checks from compensation insurer in payment of client's award are in an amount larger than the client is entitled to receive under the compensation law, and client instructs him not to reveal the apparent mistake to the insurer.
Ethical obligations of attorney determine whether client has the capacity to act adequately in her own interest. In so doing attorney may disclose confidential information to diagnostician; no conflict with two other clients of attorney's firm who may have manipulated client for their personal benefit.
Thorough analysis of the scope of an attorney's ethical duty to report another attorney's misconduct.
Settlement agreement which prohibits attorney from representing certain clients in the future, and required him to dismiss any Bar complaints he filed against other attorneys involved in the case.
Guidelines for accepting credit cards for payment of legal fees and retainers.
Where a lawyer formerly associated with County Attorney's office takes a public defender position, the lawyer may not represent a defendant in connection with a matter about which the lawyer obtained confidential information relating to the government's representation of the client; consent is also required in all cases in which the lawyer actually represented the government, by appearance or otherwise, and now seeks to represent an individual in the same or substantially related matter; the government's consent is likewise required where the lawyer participated personally or substantially in the prosecution of that matter.
Committee Deadlocked; Two alternative opinions were issued. In Opinion A., the divided committee concluded that is not improper for a lawyer or his/her agent to interview a former employee of a co-defendant without first obtaining the consent of the codefendant's counsel. In Opinion B., the committee opined that ex parte contact with a former employee is prohibited if the acts or omissions of the former employee, while employed, may be imputed to the employer for purposes of establishing liability; the contact may be improper if the former employee has had communications with the former employee's counsel that are protected by the attorney/client privilege. Both committee conclusions would not differ if the co-defendant had obtained from the plaintiff a covenant not to execute in order to shield it from exposure to the plaintiff.
Necessity of lawyer withdrawing from representation of client who lawyer knows has obtained information by means of surreptitious tape recording. Attorney making use of such information.
Multi-person law firm listed on letterhead and other communication of another law firm as "of Counsel" to that firm.
Attorney participating with nonlawyer financial planner in presenting seminars for general public on financial planning, estate planning, and probate problems.
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.
A lawyer may not ethically divulge the name and address of a former client to adverse claimants if the former client does not wish to have this information revealed. This holds true even if the information appears in a public record.
Possible conflict or interference with professional judgment when director or public defender agency follows directions of governing body which funds the agency.
Permissible to solicit pro bono employment from prospective indigent client, provided there is no motive for pecuniary gain. Attorney may pay costs of litigation, or request client to pay as much as possible, or receive payment from a third party.
Attorney receiving more than $10,000 for legal services, may, with ethical propriety, fill out and file I.R.S. form required under Section 6050I of the Code.
Attorney may accept employment as both the guardian ad litem and attorney for a minor child in dependency proceedings provided no conflict of interest arises. Attorney representing minor child should follow the wishes of the client as much as possible. Guardian ad litem cannot waive attorney/client privilege.
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.