Rule 1.15(f) of the Arizona Rules of Professional Conduct (“ER 1.15(f)” or “the Rule”) provides an ethical “safe harbor” to lawyers who distribute disputed property—including funds—in the lawyer’s possession after providing notice to third persons known to claim an interest in the property. See ER 1.15 cmt. 1 (2014 amendment). The questions before the Attorney Ethics Advisory Committee (the “Committee”) are: what constitutes sufficient notice under ER 1.15(f) where the lawyer is in possession of property that is the subject of a disputed health care provider lien asserted under A.R.S. §§ 33-931 through 33-936, and what obligations does the lawyer have to respond to requests for information before coming into possession of the property?
While modern electronic communications are often greatly beneficial to the client, lawyers who use them to send or receive documents or other communications on behalf of clients must be aware that they carry certain risks. Lawyers must take reasonable precautions to prevent inadvertent disclosure of confidential information.
Except in the specific circumstances described in this opinion, a lawyer who receives an electronic communication may not examine it for the purpose of discovering the metadata embedded in it.
This Opinion discusses a lawyer's ethical obligations not to use information obtained by a client in a civil case from documents copied from the records of a potentially adverse party that contain privileged or otherwise confidential information without the consent of opposing counsel or court order. The lawyer also must advise the client to refrain from obtaining other privileged documents and notify opposing counsel of the receipt of the information. [ERs 1.2, 1.6, 1.16, 3.4, 4.1, 4.4, 8.4]
CAUTIONARY NOTE: This Opinion relied on ABA Formal Opinions 92-368 and 94-382, which have since been withdrawn. See also ER 4.4(b), added in 2003.
A lawyer may interview ex parte a client's employee concerning litigation with the employee's former employer, subject to the limits recognized in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992). In interviewing an employee in these circumstances, the lawyer must also comply with other applicable ethical rules in addition to ER 4.2, particularly ERs 4.3 and 4.4. [ERs 4.2, 4.3, 4.4]
Defense counsel in workers' compensation cases cannot contact the plaintiff's treating physician ex parte, unless, with advance notice, plaintiff expressly and unconditionally authorizes the contact. [ER 4.4]
An attorney who is litigating against a homeowner's association may communicate with general members of the association who are not board members or officers of the association and are not in a position to bind the association, without the prior consent of counsel for the association. [ERs 4.2, 4.3, 4.4]
Opinion considers what an attorney should do with a tape recording given to the attorney by a client when the tape is a recording of telephone conversations made by client's spouse to other individuals including the spouse's former attorney in a prior divorce. The tape was not obtained illegally. The opinion concludes that the attorney may review the contents of the tape, with the client's informed consent and the attorney may have a duty to safeguard the tape and must advise the client of limitations on the attorney's conduct. One dissent.
Propriety of surreptitiously recording interviews of potential witness in a criminal case.
Necessity of lawyer withdrawing from representation of client who lawyer knows has obtained information by means of surreptitious tape recording. Attorney making use of such information.
Propriety of plaintiff's attorney taking a statement from a person named as a defendant in plaintiff's complaint, but who is unserved and unrepresented by counsel without disclosing to that person her status as a named defendant.