State Bar of Arizona Ethics Opinions

86-04: Competence; Diligence; Declining Representation

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


        The City Attorney's Office of City A has requested an opinion regarding whether the Court's decision in State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984), applies to prosecutors as well as defense attorneys. The City hires a part-time prosecutor to handle matters that occur in the City Municipal Court, or are appealed to the Superior Court of the county or to the Supreme Court of Arizona. The city pays a fixed sum for 25 hours of prosecutorial services a week, regardless of the caseload which results under the contract. In 1983, the part-time position required handling of 365 misdemeanor complaints and a comparable or greater load was anticipated in future years.

        In April, 1984, the Arizona Supreme Court, in State v. Joe U. Smith, supra, evaluated the Mohave County bid system for obtaining indigent defense counsel and held that the system raised a rebuttable inference of inadequate assistance of defense counsel and violated the due process rights of criminal defendants. The Court also reminded counsel that “accepting more cases than can be properly handled may result not only in reversals for failing to adequately represent clients, but in disciplinary action for violation of the Code of professional Responsibility”. Smith at 140 Ariz. 363, 681 P.2d 1382.


          Rule 6(a) of the Statement of Jurisdictional Policies of this Committee provides:

"6. The Committee's jurisdiction being limited to the resolution of questions of           professional ethics, it will not render opinions:

            (a)       On pure questions of law, or on mixed questions of law and fact;

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The specific inquiry of the applicability of the Smith decision to the facts presented here is a question of law beyond the Committee’s jurisdiction.

        However, the question of the applicability to prosecutors of the Ethical Rules that require competent representation can be answered.


ER 1.1 Competence

        A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ER 1.3 Diligence

        A lawyer shall act with reasonable diligence and promptness in representing a client.

ER 1.16 Declining or Terminating Representation

(a)   . . . lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1)       the representation will result in violation of the Rules of Professional  Conduct or other law;

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ER 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a)       violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another”

            * * * * *


Prosecutors, like other lawyers, have a duty to represent their client competently (Ethical Rule 1.1) and diligently (Ethical Rule 1.3). Any lawyer who fails to provide competent representation due to an excessive caseload, or any other reason, is committing an ethical violation.

The Supreme Court of Arizona, citing the Code of Professional Responsibility in force at the time of the Smith decision, stated that an extreme caseload and a consequent lack of preparation violated Disciplinary Rule 6-101 (A) (2) and (A) (3) which provided:

“(A)      A lawyer shall not:

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(2)       Handle a legal matter without preparation adequate in the circumstances.

(3)       Neglect a legal matter entrusted to him. *

            In addition, inadequate attention to a particular case violated Disciplinary Rule 7-101 which provided:

            “(A)      A lawyer shall not intentionally:

                        (1)       Fail to seek the lawful objectives of his client through reasonably                                          available means permitted by law and the Disciplinary Rules,

* * * * *

                        * * * * *

(3)       Prejudice or damage his client during the course of the professional relationship,

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Finally, the constraints imposed by a severe caseload might have caused a lawyer to violate Canon 5, “A lawyer should exercise independent professional judgment on behalf of a client," and associated disciplinary rules, where the lawyer's business or personal interests were allowed to affect his decision with respect to a particular case. The principles expressed in these Canons and Disciplinary Rules have been included and at times expanded upon in the newly adopted Rules of Professional Conduct.

The requirement that the lawyer provide competent representation to a client under Ethical Rule 1.1 is one of the major differences between the former Arizona Code of Professional Responsibility and the new Arizona Rules of Professional Conduct. The specific competency provision of the A.B.A. Model Code of Professional Responsibility, DR 6-101 (A) (1), was not adopted by the Arizona Supreme Court as part of the Arizona Code in 1970. Rule 1.1 requires that a lawyer shall provide competent representation and defines such representation as involving the thoroughness and preparation reasonably necessary. Thus, the new rule imposes a higher standard of competency than did the former Code. In addition, former Disciplinary Rule 6-101 (A) (2) and (A) (3)'s mandates for preparation adequate in the circumstances and lack of neglect have also been included in new Ethical Rule 1.1 on attorney competence.

Former Disciplinary Rule 6-101 (A) (3), as well as Canon 7’s directive to represent a client zealously and the associated Disciplinary Rule 7-101 (A) (1) and (A) (3), are reflected in new Ethical Rule 1.3 on Diligence. The comment to this Ethical Rule explains that reasonable diligence and promptness require that a lawyer should act with commitment and dedication to the interest of the client, and that a lawyer's workload should be controlled so that each matter can be handled adequately.

Ethical Rule 1.16 makes clear that a lawyer with a maximum caseload must decline new cases or terminate representation where the representation will result in violation of the Rules of Professional Conduct or other law. Consequently, where the demands of an extreme caseload make an attorney unable to devote sufficient attention to a particular case, acceptance of that case will cause a violation of Ethical Rules 1.1 on competent representation, 1.3 on attorney diligence and 1.16 for failing to decline or terminate representation where the representation will violate those rules.

Thus, a lawyer who accepts more cases than he can competently prosecute will be committing an ethical violation. The factual question that this Committee cannot answer is whether 365 misdemeanor cases can be competently prosecuted in the time allotted by the contract.

The ethical conduct of the City Attorney in offering the contract is covered by Ethical Rule 8.4 which proscribes knowingly assisting or inducing another to violate the Rules of Professional Conduct. If the City Attorney determines that the caseload anticipated under the contract cannot be competently prosecuted, assisting or inducing another lawyer to accept the contract would be professional misconduct.

Assuming that the lawyers involved feel that the caseload anticipated is not unmanageable on its face, and the contract is accepted, there remains a continuing ethical responsibility to accept no more cases than can competently be prosecuted at a given point in time.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.


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