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.