Should "Personal Consultation" Precede a Motion for Sanctions?

By Patricia Sallen, Director of Special Services & Ethics/Deputy General Counsel
September 17, 2013

The State Bar's Professionalism Committee is proposing to amend Rule 41, Ariz. R. Sup. Ct., to require that counsel make a good-faith effort to consult with the opposing counsel or party (as appropriate) before filing a request for sanctions. The State Bar Board of Governors' Rules Committee is considering whether to recommend to the Board that the petition be filed.

The Professionalism Committee's proposal is patterned after Rule 26(g), Ariz. R. Civ. P., which requires counsel who file discovery motions to attach separate statements advising that they have been unable to satisfactorily resolve the matter, despite personal consultation and good-faith efforts to do so.

What do you think about such a requirement? And what should constitute "personal consultation?" Email? Texts? A face-to-face meeting? Voice-mail messages?

Read the Professionalism Committee's proposed petition here. If you wish to comment on the proposal, email your comment to rules@azbar.org by Friday, Oct. 25.