Rules of Professional Conduct Related Ethical Opinions

8.4  Misconduct

15-01: Plea Agreements; Waiver; Ineffective Assistance; Conflict of Interest; Criminal Representation

The conflict-of-interest rules prohibit a defense attorney from advising a criminal defendant to waive the defendant’s right to raise that attorney’s ineffective assistance of counsel. The ethical rules also prohibit a prosecutor from insisting that a defendant waive the right to raise ineffective assistance of counsel and prosecutorial misconduct claims. Opinion 95-08 is accordingly withdrawn.

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.

07-03: Confidentiality; Electronic Communications; Inadvertent Disclosure

While modern electronic communications are often greatly beneficial to the client, lawyers who use them to send or receive documents or other communications on behalf of clients must be aware that they carry certain risks. Lawyers must take reasonable precautions to prevent inadvertent disclosure of confidential information.

Except in the specific circumstances described in this opinion, a lawyer who receives an electronic communication may not examine it for the purpose of discovering the metadata embedded in it.

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.

05-02: Advertising - Referral Gifts/Fees; Inactive Lawyer

An attorney who is on inactive status and not practicing law must comply with the Rules of Professional Conduct. An inactive attorney may pay a referral fee to a third party so long as the fee is not related to legal services and does not constitute sharing of legal fees. An inactive attorney may not, however, pay the referral fee to a practicing attorney.

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.

01-04: 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]

00-11: Confidentiality; Subpoenas

The Opinion discusses the ethical duty of "confidentiality" when a lawyer is requested, by a subpoena, to disclose information related to his representation of a client, when the client does not authorize the disclosure. [ERs 1.6(a), 8.4]

99-11: Misrepresentation; Investigators; Employees of Lawyers

A private practice lawyer ethically may direct a private investigator or tester to misrepresent their identity or purpose in contacting someone who is the subject of investigation, only if the misrepresentations are for the purpose of gathering facts before filing suit. [ER 4.1, 5.3(c), 8.4(c)]

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]

95-03: Tape Recording; Opposing Counsel

The secret tape recording of a telephone conversation with opposing counsel involves an element of deceit and misrepresentation.  As such, the surreptitious tape recording of a telephone conversation with opposing counsel does not comport with Arizona ethics standards.  This opinion specifically does not overrule or revisit prior opinions 75-13 and 90-02.  [ER 8.4]

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.

94-11: Client Confidences; Collection Agencies

An attorney must have the prior consent of a client before disclosing client confidences to a credit reporting agency or a collection agency that uses a credit reporting agency. An attorney is responsible for assuring that a collection agency exercises the same ethical integrity that the lawyers must.

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.

94-07: 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.

92-09: Advertising and Solicitation; Recommendation of Employment

Attorney who owns a collection agency which solicits prospective customers asks whether he may establish an attorney/client relationship with those customers whose collection matters have not been successfully resolved through traditional non-legal collections procedures.

91-23: Conflict of Interest; Misconduct

Attorney may not agree to settle a fee dispute with his client on condition that client agree not to file a Bar complaint against him.

91-15: Conflict of Interest; Misconduct

In the facts presented, not unethical for attorney suffering from financial hardships to seek and enjoy the full protection of the bankruptcy courts.

91-07: Misconduct

Letter to delinquent parent to be mailed by Child Support Services Division of County Attorney's office threatening possible civil contempt and criminal consequences for failure to pay court ordered child support.

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.

90-13: Reporting Professional Misconduct

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

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.

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

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

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.

87-26: Misconduct; Reporting Misconduct

Ethical responsibility of a lawyer who has knowledge of another lawyers failure to file income tax return.

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.

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.

87-02: Ex Parte Communication; Misconduct

Except in certain situations, it is not ethical to have ex parte communication with administrative law judge concerning a Case pending before that judge.

86-04: Competence; Diligence; Declining Representation

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