Confidentiality

ALL voluntary communication with the Lawyer Assistance Program is strictly confidential.  NO information will be released without written and signed consent, unless an attorney is mandated to participate as an element of probation or diversion. The following rules and commentary apply to either one or both of our programs, MAP and LOMAP.

Rules of Professional Conduct - Rule 42, ER 8.3 Ariz. R. S. Ct.

ER 8.3 - Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority, except as otherwise provided in these Rules or by law.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rules does not require disclosure of information otherwise protected by ER 1.6 or information gained by a lawyer or judge while service as a member of an approved lawyers assistance program to the extent that such information would be confidential if it related to the representation of a client.

Amended April 14, 1988, effective May 1, 1988; March 30, 1994; effective June 1, 2994. Amended Jan. 22, 2002, effective June 1, 2002; June 9, 2003, effective Dec. 1, 2003.

Comment [2003 amendment]

[1]  Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct.  An apparently isolated violation may indicate a patter of misconduct that only a disciplinary investigation can uncover.  Reporting a violation is especially important where the victim is unlikely to discover the offense.

[2]  A report about misconduct is not required where it would involve violation of ER 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

[3]  If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense.  Such a requirement existed in many jurisdictions but provided to be unenforceable.  This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.  A measure of judgment is, therefore, required in comply with the provisions of this Rule.  The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.  A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances.  Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question.  Such a situation is governed by the Rules applicable to the client-lawyer relationship.

[5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program.  In that circumstance, providing for the confidentiality of such information encourages lawyers and judges to seek treatment through such a program.  Conversely, without such confidentiality, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public.  The Rule therefore provides that a lawyer may not report pursuant to paragraphs (a) and (b) information that would be protected by ER 1.6 if the relationship between the impaired lawyer or judge and the recipient of the information were that of a client and a lawyer.

Comment to 2002 Amendment to ER 8.3(c)
Information about a lawyer's or judge's misconduct or fitness may be gained by a lawyer participating in an approved lawyers' assistance program. For purposes of this rule, lawyers 'participating' shall mean lawyers seeking assistance, program staff and volunteers, including members of MAC, as well as any other Arizona lawyer whose assistance is requested or approved by the MAP Director or MAC Chair(s) or Vice Chair(s).  Treating information gained in this context as confidential encourages lawyers to seek the diverse services provided by such programs.  It also ensures that lawyers assisting or providing services to the program as staff or volunteers are not subject to discipline for failure to disclose information that would otherwise be subject to reporting under paragraphs (a) and (b) of the rule. Without confidentiality, lawyers may hesitate to utilize program services, which may result in additional harm to clients, the public or themselves, and may discourage lawyers from providing assistance and services offered by the program.