Rules of Professional Conduct Related Ethical Opinions

3.3  Candor Toward the Tribunal


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.

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.

05-05: Candor to Tribunal; Client Perjury; Confidentiality

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.

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.

03-01: Lawyer as Witness; Candor Toward Tribunals

The Arizona Rules of Professional Conduct ("Rules of Professional Conduct" or "ER") do not prohibit a lawyer from verifying a pleading on behalf of a client so long as the lawyer otherwise complies with the Rules of Professional Conduct in doing so. This opinion does not address whether other substantive or procedural law would permit a lawyer to verify a pleading in any particular proceeding. Should the lawyer become a "necessary witness" in a proceeding, the lawyer may be subject to a motion for disqualification.

01-14: Confidentiality; Criminal Representation; Identity of Client; Perjury; Fraud; Disclosure of Fraud; Candor Toward Tribunal; Withdrawal of Representation

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.

00-02: Confidentiality; Candor Toward Tribunals; Criminal Representation; Perjury

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]

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]

94-13: Former Client; Expert Witness; Disclosures to Tribunal

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.

93-10: Perjury

Ethical responsibility to advise court of potential client perjury.

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.

91-03: 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.

90-16: Expediting Litigation; Candor Toward Tribunal

Delaying approval of proposed written form of judgment in light of another pending case, the ruling of which could justify re-consideration or reversal of court's decision in instant case.

90-13: Reporting Professional Misconduct

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

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).