Rules of Professional Conduct Related Ethical Opinions

1.16  Declining or Terminating Representation


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.

09-02: Termination of Representation; Withdrawal; Fees; Confidentiality

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.

09-01: Restrictions on Right to Practice; Departing Lawyer

A law firm may not employ associate lawyers using a contract that requires a departing associate to pay $3,500 to the law firm for each instance in which the departing associate continued to represent a law firm client.  This requirement would violate the policy underlying ER 5.6 that puts the commercial interests of law firms secondary to the need to preserve client choice.

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.

07-02: Maintaining Client Files; Client's Papers and Documents; Electronic Storage

In appropriate cases, a lawyer may keep current and closed client files as electronic images in an attempt to maintain a paperless law practice or to more economically store files.

After digitizing paper documents, a lawyer may not, without client consent, destroy original paper documents that belong to or were obtained from the client. After digitizing paper documents, a lawyer may destroy copies of paper documents that were obtained from the client unless the lawyer has reason to know that the client wants the lawyer to retain them. A lawyer has the discretion to decide whether to maintain the balance of the file solely as electronic images and destroy the paper documents.

04-01: Liens; Files of Client; Collection of Legal Fees

An attorney may not assert a retaining lien against any items in a client’s file that would prejudice the client’s rights. While an attorney may withhold internal practice management memoranda that does not reflect work done on the client’s behalf, the burden is on the attorney claiming the lien to identify with specificity any other documents or materials in the file which the attorney asserts are subject to the retaining lien, and which would not prejudice the client’s interests if withheld from the client.

03-05: Conflicts of Interest; Settlements; Creditors of Client; Indemnify Releasee; Liens

A claimant's attorney may not ethically enter into any settlement agreement that would require the attorney to indemnify or hold the Releasee harmless from any lien claims against the settlement proceeds.

03-03: Unauthorized Practice of Law; Nonlawyers; Paralegals; Creditors of Client

Where an Arizona lawyer is asked to assist a non-lawyer in collecting a fee for services that the lawyer believes constitute the unauthorized practice of law ("UPL"), the lawyer may not assist the non-lawyer in drafting or seeking to enforce a contingent fee agreement for services rendered. Nor may a lawyer honor a claim asserted against the lawyer's client for a contingent interest in litigation as compensation for services that constitute UPL.

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)]

01-04: Confidentiality; Disclosure; Withdrawal from Representation

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]

00-03: Conflicts of Interest; Confidentiality; Fees; Collection of Legal Fees

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)]

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)]

98-06: 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]

98-07: Client Files

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

96-03: Conflict of Interest; Public Defenders; Imputed Disqualification; Criminal Representation; Ineffective Assistance

A public defender must withdraw from representation of a criminal defendant who has a "colorable" claim of ineffective assistance of counsel against another member of the public defender's office.  The timing of the withdrawal will depend upon the facts of each individual case.  [ERs 1.7, 1.10. 1.16]

96-04: Conflicts of Interest; Multiple Representation; Automobile Accident; Fee Sharing Among Lawyers

This opinion discusses the conflict of interest issues and fee issues when a law firm initially represents both a driver and passenger in a personal injury case against another driver and eventually the firm refers out the passenger for separate representation.  There is a non-waivable conflict if the firm continues to represent the driver, yet has an interest in recovering a portion of the fees retrieved by the passenger.  [ERs 1.5, 1.7, 1.8, 1.9, 1.16]

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.

93-03: Contingent Fees; Domestic Relations Cases

Where attorney, at the conclusion of representation, returns to the client all original documents and any other document from the file which belong to the client, it is not ethically improper for the attorney to charge the client for the expense of making additional copies of the file at the client's request.

92-08: Sale or Lease of a Law Practice; Goodwill of a Law Practice (Invalidated by Op. 06-01)

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)

92-01: Client Property; Retaining Liens

Obligation of an attorney in possession of his client's file to turn over documents, where a dispute has arisen between the client and the client's former attorney and both are claiming an interest in documents in the file.

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.

91-01: Confidentiality of Information; Safekeeping Property; Duty as to Client Property

Release, preservation or destruction of clients' financial and business documents when client cannot be located.

91-02: Confidentiality of Information; Representation; Scope of Representation

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.

90-11: Scope of Representations; Safekeeping Property; Expediting Litigation

Attorney must exercise independent professional judgment where he has secured and recorded a money judgment, the judgment debtor requests attorney to accept payment and enter satisfaction thereof but client cannot be located to obtain instructions.

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.

89-10: Confidentiality of Information; Conflict of Interest; Professional Independence of Lawyer

Guidelines for accepting credit cards for payment of legal fees and retainers.

88-08: Confidentiality; Diligence; Scope of Representation

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.

88-03: Diligence; Conflict of Interest

Potential conflict of interest exists between seeking the office of County Attorney and representing a criminal defendant.

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.

86-04: Competence; Diligence; Declining Representation

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

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.