87-14: Fairness to Opposing Party and Counsel; Impartiality and Decorum of the Tribunal

7/1987

Attorney citing to a trial court a memorandum decision of the Arizona Supreme Court of Arizona Court of Appeals that is not precedent, but for persuasive value only.

FACTS AND QUESTIONS

Inquiring attorney seeks an opinion as to the ethical propriety of

a) Citing to a trial court in Arizona a memorandum decision of the Arizona Supreme Court or Arizona Court of Appeals, other than for the purpose of establishing res judicata, collateral estoppel or the law of the case, if he makes clear in his brief and argument that the memorandum decision is not precedent and is cited for its persuasive value only; and

b) Citing a decision of the Superior Court in his jurisdiction (sitting as a reviewing court in a special action or a lower court appeal), again solely and expressly for its persuasive value.

ETHICAL RULES INVOLVED

ER 3.4. Fairness to Opposing Pasty and Counsel

A lawyer shall not:

* * * * *

c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

* * * * *

ER 3.5. Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or an official of a tribunal by means prohibited by law;

* * * * *

OPINION

In our Opinion No. 78-4, we addressed the issue posed by this inquiry. The rule under discussion in that opinion has now become Rule 111(c) of the Rules of the Arizona Supreme Court ["Rule 111(c)"] and Rule 28(c) of the Arizona Rules ofCivil Appellate Procedure ["Rule 28(c)”]. There has been no change in the language of the rule, however. The current rules provide:

Memoranda decisions shall not be regarded as precedent nor cited in any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case.

Effective February 1, 1985, the Supreme Court of Arizona discarded the Code of Professional Responsibility, under which Opinion No. 78-4 was decided, and adopted the Rules of professional Conduct ("Rules"). Although the adoption of the Rules effected substantive changes in many areas of ethical responsibility of lawyers, in our opinion no substantive change in the area under inquiry here was effected by adoption of the Rules.

For purposes of this discussion, ER 3.4(c) is virtually the same as DR 7-106(A) of the Code of Professional Responsibility. For purposes of this discussion, ER 3.5(a) imposes similar ethical obligations as DR 7-106(C) (7). The committee therefore reaches the same conclusion as to Question a) as it did in Opinion No. 78-4. Insofar as the citation contemplated would be of a “memorandum decision" as defined in Rules 111(c) and 28(c), such a citation would disregard a rule of the Supreme Court, would appear to be seeking to influence a judge by means prohibited by law, and would therefore be unethical.

There does not, on the face of either Rule 28(c) or Rule 111(c), appear to be any prohibition against citing to another court a decision of the Superior Court in a special action or in a lower court appeal. There does not appear to be any rule in the Superior Court Rules of Appellate Procedure that would make either Rule 111(c), Roles of the Arizona Supreme court, or Rule 28(c), Arizona Rules of Civil Appellate Procedure, applicable to opinions of the Superior Court sitting on a lower court appeal or which would prohibit such citation. On the other hand, Rule 9 of the Rules of Procedure for Special Actions make the Arizona Rules of Civil Appellate Procedure applicable to special actions. Therefore, perhaps the argument could be made that Rule 28 (c) would prohibit the citation of a memorandum decision of the Superior Court deciding a special action. The committee is of the opinion, however, that Rule 28, by its title, indicates that it was not intended to be applicable to any court other than the Supreme Court or Courts of Appeals. Moreover, the terms of the Rule indicate inapplicability to a situation where only one judge, such as a Superior Court judge, is rendering a decision. The committee therefore finds no ethical impropriety in the citation to a decision of the Superior Court regarding the disposition of a special action or a lower court appeal.

We accordingly conclude that the proposed conduct set forth in question a) would be unethical, but that the proposed conduct set forth in question b) would not be unethical.

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.