Rules of Professional Conduct Related Ethical Opinions

2.1  Advisor

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 Opinion 95-08 is accordingly withdrawn.

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.”

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.

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]

97-06: Communication with Client; Advice to Client; Criminal Representation

A lawyer who has a client that is considering entering into a cooperation agreement with a law enforcement agency has an ethical obligation to determine all relevant facts that should be weighed in such a decision, including the availability of protection for the client, and must advise the client, candidly, of the risks associated with the client's proposed cooperation.  [ERs 1.1, 1.4, 2.1]

96-07: Conflict of Interest; Lawyer as Trustee; Wills; Estates

An attorney may draft a revocable living trust with a pour-over will for a client and be named as trustee and/or personal representative. Such an arrangement does not constitute a gift under ER 1.8, but the lawyer may not recover trustee fees in addition to legal fees for the same work.  The lawyer must be able to exercise independent professional judgment when acting as both trustee and counsel to the estate. [ERs 1.8, 2.1]

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.

87-13: Professional Independence; Conflicts

Possible conflict or interference with professional judgment when director or public defender agency follows directions of governing body which funds the agency.

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).