Rules of Professional Conduct Related Ethical Opinions

1.2  Scope of Representation and Allocation of Authority between Client and Lawyer


11-03: Liens; Safekeeping Client Property; Third-Party Interest in Settlement Funds

A lawyer holding property in which both the client and a third person have an “interest” must account for the property, pay undisputed sums to the proper party, and abide resolution of any disputes.  Arizona Rules of Professional Conduct (“ERs”) 1.15(d), (e).  ER 1.15(d) requires a lawyer with knowledge of claims against the client to protect those with an “interest” in funds in the lawyer’s control.  An “interest” is a matured legal or equitable claim.  The ethical rules do not require a claimant’s lawyer to search public records or other sources for medical liens or claims in order to acquire knowledge of an “interest.”

11-01: Scope of Representation

A lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act (“Act”), despite the fact that such conduct potentially may violate applicable federal law.  Lawyers may do so only if: (1) at the time the advice or assistance is provided, no court decisions have held that the provisions of the Act relating to the client’s proposed course of conduct are preempted, void or otherwise invalid; (2) the lawyer reasonably concludes that the client’s activities or proposed activities comply fully with state law requirements; and (3) the lawyer advises the client regarding possible federal law implications of the proposed conduct if the lawyer is qualified to do so, or recommends that the client seek other legal counsel regarding those issues and appropriately limits the scope of the representation.

NOTE: This opinion is limited to the specific facts discussed herein. Because the opinion is based on the Act as currently in effect, subsequent legislative or court action regarding the Act could affect the conclusions expressed herein.

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.

06-03: Limited Scope Representation; Confidentiality; Coaching; Ghost Writing

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.

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.

05-06: 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.

05-07: Non-client spouse; Indemnity; Conflict; Joint Representation

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.

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.

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]

00-04: 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]

00-06: Confidentiality; Guardians; Lawyer-Client Relationship; Minors

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]

98-01: Confidentiality; Disclosure; Court Orders; Public Defenders

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]

96-01: Mediation; Divorce

This opinion addresses three issues with respect to attorneys who function as mediators for non-client parties as follows:  (1) ER 2.2 does not apply to the attorney-mediator who acts exclusively as a neutral for non-clients during the mediation process; (2) ER 2.2 does not apply to the attorney-mediator who drafts a non-binding memorandum of understanding if full disclosure is made to the participants; and (3) the Ethics Committee could not reach a consensus as to whether or not attorney-mediators may prepare pleadings for the mediation participants. [ERs 1.2, 1.7, 1.8, 2.2, 3.1, 3.3, 8.4]

95-02: Confidentiality; Disclosure of Client Whereabouts

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]

94-08: Limitation on Representation; Reporting Misconduct; County Attorney Contract

Private practitioner offered a contract to represent a county commission may not agree to terms that would require the attorney to seek prior approval of the board of supervisors before proceeding beyond filing an answer. Opinion also discusses whether it is an ethical violation to offer such a contract.

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.

93-14: 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.

92-02: Confidentiality; Candor to the Tribunal

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.

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.

91-03: Scope of Representation; Candor Toward Tribunal; Fairness to Opposing Party or Counsel

Guidelines for attorney who prepares pleadings, gives legal advice and provides other legal services for client who appears in court in propria persona.

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.

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.

88-02: 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.

87-22: Scope of Representation; Confidentiality; Truthfulness

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.

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.

86-12: Fees; Scope of Representation; Meritorious Claims

Pursuant to A.R.S. § 25-315, a lawyer may obtain a lien on a community funds as security for fees and costs, unless and until an Arizona Appellate Court rules otherwise.

86-05: Scope of Representation

Attorney advising client arrested for DWI to refuse to submit to blood, breath or urine tests under A.R.S. § 28-691 (A).

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.