Rules of Professional Conduct Related Ethical Opinions

4.3  Dealing with Unrepresented Person


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.

05-07: 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.

04-03: Client Funds and Property; Liens; Collection of Legal Fees; Missing Clients; Creditors of Client

An attorney cannot, without the consent of his former client, ethically disburse to himself funds from a former client's share of funds in the attorney's possession, where the former client owes the attorney unpaid fees, but the funds in the attorney's possession are unrelated to the representation of the former client. If the attorney is unable to locate the former client to obtain her consent, the attorney should commence an interpleader action.

03-02: Communication with Represented Persons; Bankruptcy Trustee/Ex Parte contact

A lawyer serving as trustee in bankruptcy may directly contact parties in bankruptcy cases who are represented by counsel. The lawyer acting as both the trustee and attorney for the trustee may not have ex parte contact, unless authorized by law to do so.

00-05: Communication with Corporate Employees; Communication with Represented Parties; Ex Parte Communications; Communication with Witnesses

A lawyer may interview ex parte a client's employee concerning litigation with the employee's former employer, subject to the limits recognized in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992). In interviewing an employee in these circumstances, the lawyer must also comply with other applicable ethical rules in addition to ER 4.2, particularly ERs 4.3 and 4.4. [ERs 4.2, 4.3, 4.4]

96-02: Contacting Non-party Witness; Homeowner's Association; Communication with Adverse Parties; Ex Parte Communications

An attorney who is litigating against a homeowner's association may communicate  with general members of the association who are not board members or officers of the association and are not in a position to bind the association, without the prior consent of counsel for the association.  [ERs 4.2, 4.3, 4.4]

91-21: Conflict of Interest

If an attorney-client relationship has been established between County Attorney and a custodial parent in connection with efforts to obtain child support payments, the County Attorney may not thereafter assist non-custodial parents in actions for downward modification of support payments.

90-02: Dealing with Unrepresented Person; Respect for Rights of Third Persons

Propriety of surreptitiously recording interviews of potential witness in a criminal case.

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).

87-25: Truthfulness; Unrepresented Persons

Propriety of plaintiff's attorney taking a statement from a person named as a defendant in plaintiff's complaint, but who is unserved and unrepresented by counsel without disclosing to that person her status as a named defendant.