Rules of Professional Conduct Related Ethical Opinions

3.4  Fairness to Opposing Party and Counsel


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]

97-07: Witness Compensation; Fairness to Opposing Party

A lawyer may pay a fact witness reasonable compensation for time spent preparing for testimony as long as the compensation is not based upon the outcome of the litigation.  The client is ultimately responsible for such costs and the reasonableness of the fee must be determined on a case-by-case basis.  [ERs 1.8, 3.4]

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.

94-07: Prosecutor's Duties; Candor

Opinion discusses the duties of a prosecutor to disclose exculpatory information to defense in the context of three scenarios. Reference is made to the constitutional issues.

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.

93-05: Employment of Non-Lawyers; Trial Consultants

Lawyer may employ a non-testifying trial consultant, and pay him a prearranged bonus fee of if the case settles or is won at trial, subject to certain guidelines.

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.

90-13: Reporting Professional Misconduct

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

89-05: Opposing Party and Counsel; Communication with Person Represented by Counsel

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.

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.

88-01: Fairness to Opposing Counsel; Misconduct

Ethical propriety of lawyer having ex parte contact with opposing counsels designated expert witness.

87-14: Fairness to Opposing Party and Counsel; Impartiality and Decorum of the Tribunal

Attorney citing to a trial court a memorandum decision of the Arizona Supreme Court of Arizona Court of Appeals that is not precedent, but for persuasive value only.

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.

86-07: Conflicts; Advisor; Fairness; Non-Lawyer Assistance

Lawyer acquiescing in or recommending to a client a contingent fee contract with medical consulting service for expert testimony is improper.

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).