Rules of Professional Conduct Related Ethical Opinions

1.1  Competence

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 Opinion 95-08 is accordingly withdrawn.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 To the extent prior opinions of this Committee may be construed as asserting otherwise, they are withdrawn.

13-01: Internet Marketing Vouchers or Coupons

Whether an Internet marketing voucher or coupon sold by a lawyer for legal representation is consistent with the Arizona Rules of Professional Conduct will depend on the terms and conditions of the voucher or coupon sold as well as the other facts and circumstances. Absent specific terms and conditions, however, it is unlikely that an Arizona lawyer can ethically use Internet marketing voucher- or coupon-based legal services due to a panoply of ethical concerns arising under Ethical Rules (ERs) 1.1, 1.2, 1.6, 1.7, 1.9, 1.15, 1.16, 1.18, 5.4, 7.1, and 7.2. 

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.

09-04: Confidentiality; Maintaining Client Files; Electronic Storage; Internet

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.

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.

06-04: Disclosure; Third Parties; Prepaid Legal Services; Conflict

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.

05-04: Electronic Storage; Confidentiality

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.

05-06: Limited Scope Representation; Candor to Tribunal; Fees

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.

04-05: Deceased and Disabled Lawyers; Client Property; Trust Accounts

It is prudent for a lawyer to make arrangements for the administration of his or her client trust account in the event of the lawyer’s death or disability. It is beyond the jurisdiction of the Committee to offer legal advice as to the particular means of making such arrangements, but a prudent lawyer is well-advised to identify someone in advance of such a contingency who can assume such a responsibility, to develop a plan that covers both the contingencies of disability and death, and to incorporate plans for the administration of the client trust account into a broader plan for winding up the lawyer’s affairs if either contingency occurs.

98-06: Liens; Creditors of Clients; Client Funds and Property; Settlements

This opinion addresses an attorney’s obligations to a third party who claims an interest in funds.  [ER 1.15]

98-02: Reporting Misconduct; Ineffective Assistance of Counsel; Criminal Representation

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]

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]

90-13: Reporting Professional Misconduct

Thorough analysis of the scope of an attorney's ethical duty to report another attorney's misconduct.

90-10: Declining or Terminating Representation; Responsibilities of Supervisory Lawyer; Responsibilities of Subordinate Lawyer; Professional Independence of Lawyer

Ethical obligations of Public Defender and individual attorneys in his office who are carrying unduly high annual caseloads.

89-06: Reporting Misconduct

General comments on the extent of a lawyer's obligation to report another attorney's misconduct in light of In re Himmel (Ill. 1988).

86-04: Competence; Diligence; Declining Representation

Competent and diligent legal representation applicable to part-time city prosecutor regardless of caseload resulting under the contract.