Confidentiality
ALL voluntary communication with the Member Assistance Program
or Member Assistance Committee is strictly
confidential. NO information will
be released without written and signed consent.
Rules of Professional Conduct - Rule 42, ER 8.3
Ariz.R.Sup.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.