87-05: Scope of Representation; Advisor; Misconduct

2/1987

Attorney may advise client arrested for DWI to refuse to submit to chemical tests, the preferable course, however, is to advise client of consequences for such conduct.

FACTS

The inquiring attorney requests that we reconsider our Opinion No. 86-5 in light of a new opinion of the Arizona Court of Appeals, State v. Superior Court of Pima County, ____ Ariz. ____, ____ P.2d ____, (2 CA-CIV 5598, June 2, 1986).

QUESTION

May an attorney ethically advise a client arrested for driving while intoxicated to refuse to undergo blood, breath or urine tests?

ETHICAL RULES INVOLVED

ER 1.2(a) & (d). Scope of Representation

ER 1.4(b). Commun-ication

ER 1.14. Client Under a Disability

ER 2.1. Advisor

ER 3.4(a) & (d). Fairness to Opposing Party and Counsel

ER 8.4(d). Misconduct

OPINION

The request for our earlier Opinion No. 86-5 was prompted by Judge Livermore's dissenting opinion in State v. Rolland, 147 Ariz. 463, 711 P.2d 602 (App. 1985), affirmed 147 Ariz. 453, 711 P.2d 592 (1985).

In our prior Opinion No. 86-5 we pointed out that this committee "cannot decide questions of law.” Our opinion that an attorney may not, consistent with the Rules of Professional Conduct, advise his client to refuse to submit to a blood alcohol test, was explicitly premised on the decision of the Arizona Supreme Court in Campbell v. Superior Court, 106 Ariz. 542, 479 P. 2d 685 (1971), that "a person does not have a right to refuse to submit to a chemical test only the physical power.” 106 Ariz. at 550, 479 P.2d at 693 (emphasis in original).

In its recent decision, State v. Superior Court of Pima County, _________Ariz, _____, P.2d _____ (2 CA-CIV 5598, June 2, 1986) the Arizona Court of Appeals stated:

There is, however, no constitutionally protected liberty to refuse to take an intoxilyzer test.... “The right to refuse the test has been granted by statute, A.R.S. § 28-691 (D). That refusal, however, carries with it consequences, including introduction of the evidence in trial."

In its recent decision, the Court of Appeals does not discuss the previously quoted portion of the decision of the Arizona Supreme Court in Campbell.

If our understanding of the law in Arizona with regard to the right of a defendant to refuse the tests was incorrect, then the conclusion we reached would also be incorrect.

In our prior opinion, we noted that ER 1.2(d) forbids a lawyer to “counsel a client to engage...in conduct that the lawyer knows is criminal or fraudulent." We remain unaware of any legal provision that makes it either criminal or fraudulent to refuse to take the tests.

In our prior opinion, we also pointed out that ER 3.4(a) provides that a lawyer shall not, "unlawfully obstruct another party's access to evidence” and “shall not counsel" his client “to do any such act." The key issue remains whether to refuse the tests is to “unlawfully” obstruct another party's access to evidence. Where the state of the law is so uncertain with regard to whether there is a right to refuse the tests, we do not think that there is any ethical impropriety in advising a client not to submit to the tests.

ER 3.4(d) provides that a lawyer shall not “in pretrial procedure,... fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” A.R.S. § 28-692 (K) provides that, if the client refuses to submit to the tests, "evidence of refusal is admissible in any civil or criminal action or proceeding . . .”

Here, again, it appears that there may be a right to refuse to provide the requested discovery and that the consequences of the exercise of that right are provided by the statute. Again, in such circumstances, we do not believe that the attorney who advises his client not to take the tests has committed a violation of the ethical rule.

We wish to emphasize that this committee “cannot decide questions of the law." The law, as we currently understand it, is subject to change by the legislature and the courts, and further changes or clarification of the law relating to implied consent might change the ethical duties of attorneys. ER 8.4 (d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice." Since we find no violation of any of the rules specifically applicable in this situation, we do not feel that advising a client to refuse a breathalyzer test should be considered a violation of ER 8.4 (d).

In numerous provisions the Rules of Professional Conduct emphasize that lawyers should assist their clients in making informed decisions, rather than making critical decisions for a client. For example, ER 1.4 (b) states: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." See also ER 1.2 (in a criminal case a lawyer shall abide by the client's decision, after consultation with the lawyer, as to ... whether the client will testify) and ER 1.14 (clients whose ability to make decisions is impaired).

Our prior opinion emphasized ER 1.2(d) which provides:

"A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal conseguences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

In advising a client with regard to the blood alcohol test, the preferable course of conduct is for the lawyer to advise the client of the legal consequences and to permit the client to make his or her own decisions. Such a course of action is not only

consistent with the obligations that the attorney owes to his client to fully inform him or her, but also permits the attorney to avoid the risk that, if this committee's understanding of the legal issues involved in this opinion is incorrect, the attorney might be subject to disciplinary action for advising the client to refuse the tests.

We accordingly conclude that an attorney may, without violating the Rules of Professional Conduct, advise a client arrested for driving while intoxicated to refuse to undergo blood, breath or urine tests. Nevertheless, the preferable course of conduct is for the attorney to fully advise the client of the consequences of refusing to undergo the tests and to permit the client to make his or her own decision.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.