This Opinion was originally issued by the State Bar of Arizona, Rules of Professional?Conduct Committee in 2005. The Arizona Attorney Ethics Advisory Committee (the “Committee”) has updated the Opinion but its conclusions remain unchanged.
This opinion reviews the ethical dilemma posed when an attorney learns that, due to a former client’s apparent perjury in a civil proceeding, the attorney has offered false material evidence to a tribunal. The Committee concludes that the Arizona Rules of Professional Conduct, under the facts of this case, provide that the attorney’s duty of candor to the tribunal overcomes the ethical duty of preserving the former client’s confidences and that the attorney must take reasonable remedial measures effective to undo the effect of the false evidence with respect to the affected tribunal.
Lawyer-client relationships sometimes end earlier than the lawyer and client anticipated at the start of the representation. A lawyer’s withdrawal from representation is not always agreed upon by the client and may also be under touchy circumstances, such as dishonesty of the client or non-payment of fees owed to the lawyer. Further, a client may fire a lawyer at any time, for good or bad reasons. A lawyer faced with such situations must uphold the lawyer’s ethical responsibilities to the client despite that the representation is at, near, or has reached an end. Client confidentiality must be protected unless the ethical rules specifically allow disclosure, and any disclosures must be made as narrowly as possible. If, in a court setting, the tribunal does not allow the withdrawal, the lawyer can seek relief from a higher court, but must protect the client’s interests and competently represent the client until and unless an order for withdrawal is granted. A withdrawing lawyer must advise the client and new counsel of pending court dates, status of the case, and anything else necessary and appropriate for the smooth transfer of the representation. Any fees charged to the client for withdrawal-related work must be reasonable. Of course, the client is entitled to the client file consistent with Ethics Opinion No. EO-19-0009, regardless of the circumstances for the withdrawal.
Whether an Internet marketing voucher or coupon sold by a lawyer for legal representation is consistent with the Arizona Rules of Professional Conduct will depend on the terms and conditions of the voucher or coupon sold as well as the other facts and circumstances. Absent specific terms and conditions, however, it is unlikely that an Arizona lawyer can ethically use Internet marketing voucher- or coupon-based legal services due to a panoply of ethical concerns arising under Ethical Rules (ERs) 1.1, 1.2, 1.6, 1.7, 1.9, 1.15, 1.16, 1.18, 5.4, 7.1, and 7.2.
When a lawyer’s employment with a firm is terminated, both the firm and the departing lawyer have ethical obligations to notify affected clients, avoid prejudice to those clients, and share information as necessary to facilitate continued representation and avoid conflicts. These ethical obligations can best be satisfied through cooperation and planning for any departure.
Lawyer-client relationships sometimes end earlier than the lawyer and client anticipated at the start of the representation. A lawyer’s withdrawal from representation is not always agreed upon by the client and may also be under touchy circumstances, such as dishonesty of the client or non-payment of fees owed to the lawyer. Further, a client may fire a lawyer at any time, for good or bad reasons. A lawyer faced with such situations must uphold the lawyer’s ethical responsibilities to the client despite that the representation is at, near, or has reached an end. Client confidentiality must be protected unless the ethical rules specifically allow disclosure, and any disclosures must be made as narrowly as possible. If, in a court setting, the tribunal does not allow the withdrawal, the lawyer can seek relief from a higher court, but must protect the client’s interests and competently represent the client until and unless an order for withdrawal is granted. A withdrawing lawyer must advise the client and new counsel of pending court dates, status of the case, and anything else necessary and appropriate for the smooth transfer of the representation. Any fees charged to the client for withdrawal-related work must be reasonable. Of course, the client is entitled to the client file regardless of the circumstances for the withdrawal.
Updated by EO-20-0001
A lawyer may provide mortgage/refinancing services separate from the lawyer’s law firm so long as the proper disclosures are made, including that the lawyer is not providing legal services and the customers do not have the protections of the lawyer-client relationship. Referrals of clients must meet the “heavy burden” of compliance with ERs 1.7 and 1.8(a). Lawyers from separate law firms may participate as loan officers in the separate mortgage/refinancing company without imputed conflicts of interests for their law firms’ clients. However, these lawyers must not only make proper disclosures, but each lawyer also must determine whether the lawyer’s personal interests materially limit the lawyer’s professional judgment and whether any information known by the lawyer from these professional and business relationships creates any conflict of interest such that the lawyer may not proceed in any particular circumstance. Confidentiality requirements for clients and former clients also must be strictly followed.
Superseded by EO-20-0007
Under revised Ethical Rule 1.10 a separate “Conflicts Unit” may not be employed to address imputed conflicts involving former clients even if screening is employed as defined under ER 1.0. Two current clients may give a written informed waiver of a conflict under certain circumstances in accordance with ER 1.7. If both clients do not give consent, however, the Public Defender’s office and the proposed Conflicts Unit would constitute one firm for purposes of ER 1.10, such that referral of a case to the Conflicts Unit would not resolve the ethical conflict.
This Opinion discusses the general conflict analysis for government lawyers switching to private practice that may involve representing private clients against the lawyer’s former government agency.
An attorney who works on a contract basis for more than one law firm will be considered an associate of each firm for conflicts and confidentiality purposes unless: (1) there is a written agreement that limits the scope of the contract attorney's work to a particular client for a particular project (specifying that the relationship will terminate at the end of the project or at a particular time or upon the occurrence of a particular event); and (2) the contract attorney will not have general access. [ERs 1.6, 1.7, 1.8, 1.9, 1.10]
This opinion discusses the conflict of interest issues and fee issues when a law firm initially represents both a driver and passenger in a personal injury case against another driver and eventually the firm refers out the passenger for separate representation. There is a non-waivable conflict if the firm continues to represent the driver, yet has an interest in recovering a portion of the fees retrieved by the passenger. [ERs 1.5, 1.7, 1.8, 1.9, 1.16]
The inquiry pertains to ethical considerations when a lawyer previously represented a court appointed mental health professional expert witness several years ago in an unrelated matter. The Opinion concluded that the lawyer: 1) is not required to disclose the prior representation absent some showing that the former relationship predisposes the expert in some unusual way to favor the expert's former attorney; and 2) need not withdraw from the present representation unless there is some unusual bias on the expert's part or the lawyer is restricted in cross-examining the expert due to the prior representation.
Previous in-house counsel for insurance company may subsequently undertake representation adverse to company if dispute arose after attorney left company.
Lawyer may disclose confidential information to the extent necessary to refute former client's public assertions that the lawyer engaged in misconduct.
Ethical propriety of public defender's continued representation of a client, where the client's defense is to inculpate a co-defendant who the Public Defender's Office was appointed to represent in the early stages of the same case and also in another proceeding.
Committee discusses the propriety of a public defender's continued representation of a client where the Public Defender's Office is currently representing one person and formerly represented three others who have now been listed as witnesses for the State in the client's criminal case.
Sole practitioner proposes to turn over his law practice to a law firm while he goes on a one-year leave of absence. Discussion of whether a law practice has a salable goodwill. (Invalidated by Op. 06-01)
Under facts presented, an attorney who briefly represented a corporation in a stock dispute several years ago may now represent another corporation in an arbitration proceeding against the former client corporation.
Committee analyzes conflict of interest issues arising when persons with adverse interests in legal matters seek the assistance of the Volunteer Lawyer's Program or Community Legal Services.
If an attorney-client relationship has been established between County Attorney and a custodial parent in connection with efforts to obtain child support payments, the County Attorney may not thereafter assist non-custodial parents in actions for downward modification of support payments.
Lawyer may not defend a client in criminal fraud proceedings when client's bookkeeper was defended by lawyer's partner in substantially related IRS tax assessment proceedings, and, the bookkeeper will appear as critical prosecution witness against the client.
Thorough analysis of the scope of an attorney's ethical duty to report another attorney's misconduct.
Where a lawyer formerly associated with County Attorney's office takes a public defender position, the lawyer may not represent a defendant in connection with a matter about which the lawyer obtained confidential information relating to the government's representation of the client; consent is also required in all cases in which the lawyer actually represented the government, by appearance or otherwise, and now seeks to represent an individual in the same or substantially related matter; the government's consent is likewise required where the lawyer participated personally or substantially in the prosecution of that matter.
Multi-person law firm listed on letterhead and other communication of another law firm as "of Counsel" to that firm.
Attorney may accept employment as both the guardian ad litem and attorney for a minor child in dependency proceedings provided no conflict of interest arises. Attorney representing minor child should follow the wishes of the client as much as possible. Guardian ad litem cannot waive attorney/client privilege.
Attorney joining county attorney's office from private practice does not require vicarious disqualification of all other attorneys in county attorney's office from prosecution of attorney's former clients.