Overview of the Arizona Ethics Rules
The rules establishing the ethical obligations of attorneys in Arizona are included in the Rules of the Supreme Court of Arizona. Each attorney who is admitted to practice law in Arizona, regardless of where the attorney is physically located or licensed to practice, is subject to these rules.
Attorneys must apply relevant rules of professional ethics in the practice of law in Arizona. If the attorney is licensed in another state, that attorney is required to comply with the Arizona rules of ethics for any matters that have a substantial connection to Arizona.
Attorneys also are required to apply generally applicable rules of professional ethics in any legal matters with Arizona ties , even when those matters appear to not implicate specific rules of professional ethics. For example, a legal matter involving several states may not involve a specific rule of ethics that applies to Arizona attorneys. However, attorneys must nonetheless apply the general rules of professional ethics to the matter if those rules might otherwise apply.
Family lawyers are especially subject to ethical obligations under Arizona state law. As the Arizona State Bar has observed, "ethics and family law go hand in hand like peanut butter and jelly." This intersection of ethics and family law also can be traced back to the Arizona Rules of Family Law Procedure.
Primary Role of the Arizona State Bar
To help regulate the ethics of Arizona attorneys, the Supreme Court of Arizona sets ethics rules and procedures. The court has granted the authority to create, administer, implement and enforce the rules to the State Bar of Arizona. It also requires the bar to provide leadership in the development and implementation of policies that affect the legal profession.
The Arizona State Bar is in charge of hearing and deciding matters relating to professional conduct, including complaints against attorneys. The bar does not make an ethics determination in every case, but it does decide on the fitness of a lawyer to practice law in Arizona.
The state bar handles the investigation of the complaint of a violation and the initial presentation of the case to the Arizona Supreme Court. As a neutral, third party to the action, the bar mediates disputes and arrives at resolutions of grievances when possible.
The bar also helps attorneys gain access to the ethics rules, provides ethical consulting to attorneys, and offers CLE programs for attorneys on ethics-related topics. From time to time, it issues formal ethics opinions on topics of great importance to attorneys.
Main Precepts of Professional Conduct
The Arizona ethics rules for attorneys, as set forth in the Arizona Rules of Professional Conduct, impose upon attorneys a duty to observe certain core principles of professional conduct. These include, for example, a requirement that a lawyer shall act with integrity and honesty in representing a client, and a duty to manage any potential conflicts of interest that may arise in the course of a representation service to a client or client. These principles are reflected in specific rules as well as some of the ethics opinions and rules promulgated over the past century in Arizona.
For example, Rule ER 1.1 states that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. In particular, Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Perhaps most salient is the requirement that a lawyer must maintain the confidential information of a client. Rule ER 1.6(a) requires that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to advance the best interest of the client and is reasonably believed to be necessary to carry out the representation.
In Robinson v. Super.Ct., 178 Ariz. 89 (App. 1994), the Arizona Court of Appeals affirmed a trial court’s disqualification of an attorney from representing a defendant in a criminal case due to the attorney’s use of confidential information to gain an advantage in settlement negotiations. The trial court concluded that the secretary’s possession of information reflected a dominant client interest which had not been overcome by any shared interest of the parties. On appeal, the Court of Appeals determined that this conclusion was consistent with ER 1.6, reading a qualified privilege for the attorney, which could overcome any possible confidentiality concerns arising out of the facts of the case.
Rule ER 1.15 requires that a lawyer shall hold property of clients or third persons with the care equivalent to that which a careful and diligent man would exercise for his own property. Rule ER 1.8(a) prohibits a lawyer from entering into a business transaction with a client or knowingly acquiring an interest adverse to a client unless: The prohibition against a lawyer, contrary to ABA Model Rule 1.8(a)(2), obtaining literary or media rights to a portrayal or account based in substantial part on information relating to the representation shall not apply to a portrayal or account by a public figure or to a portrayal itself of a public event. Rule 8.4(a) provides that it is professional misconduct for a lawyer to violate the Rules of Professional Conduct or to induce another to do so, or to do so through the acts of another.
Ethical Violations and Associated Penalties
The most common ethical violations for attorneys practicing in Arizona include failure to properly supervise a subordinate or non-attorney staff member, conflicts of interest, and improper communications with clients. In this section, we will explore some of these common violations in more detail, providing examples of where attorneys may run afoul of the ethics rules.
Failure to supervise staff and prevent misconduct. Attorneys are charged with the responsibility of overseeing subordinate employees – including non-attorneys – to ensure that firm policies and law firm practices are in compliance with the Arizona Rules of Professional Responsibility. Failure to do so can lead to sanctions for the attorney employer, separate and apart from any sanctions the employee may be subject to under the ethics rules. For example, in In the Matter of the Bar Disciplinary Proceeding Against Jerry Nicholas, Esq., No. 04-3229, Attorney Discipline No. 2003-000415, 2006 WL 1390368 (June 13, 2006), the Arizona Supreme Court upheld the imposition of sanctions against a partner and managing attorney for the misconduct of a paralegal who shared confidential information with her husband, a registered sex offender, despite knowing about his status. The attorney’s failed to adequately supervise the paralegal’s conduct.
Conflicts of interest considerations. Among the most crucial areas of concern in any later-discretionary disciplinary proceeding is whether the attorney has engaged in an impermissible conflict of interest with respect to its representation of the client that they initially brought into the firm. For example, in In the Matter of the Bar Disciplinary Proceeding Against Agnes Huger, Attorney No. 006883, No. 2003-001756, 2004 WL 4502044 (Aug. 16, 2004), the Arizona Supreme Court upheld the suspension with probation of an attorney who represented a client during a prior bankruptcy proceeding, and had the client assign his interest in a personal injury settlement to the firm as payment for its services, only to represent the client for the same injuries in a later negligence action against the same defendant. The court found that while the attorney believed there was no conflict between the representation, it was sufficient to support a finding of unethical conduct that the attorney failed to adequately disclose the full extent of the attorney’s prior role in the bankruptcy proceedings with respect to the merits of the negligence matter.
Improper communications – client and adverse party. Attorneys must be diligent in their communications with both clients and adverse parties in order to avoid sanction for improper communications. An example in which there was improper communication with a party represented by counsel is Arizona Ethics Opinion 05-01, in which the attorney sent a letter directly to the sentencing judge with respect to his client’s upcoming sentencing hearing, in an effort to allow the sentencing judge to consider additional information about the client. The Committee on the Rules of Professional Conduct determined in that opinion that the attorney must not have direct communication with a party the opposing counsel has told the attorney is represented by counsel unless the opposing counsel has consented. In contrast, in In the Matter of the Bar Disciplinary Proceeding Against Steven Edward Richards, Attorney No. 021600, No. 2007-906, 2008 WL 4782573 (Nov. 4, 2008), the court refused to impose additional sanctions against the attorney who had an ex parte communication with the Department of Economic Security regarding the client’s pending Paternity case, despite the Department’s counsel having refused the attorney’s request to provide the communication in writing and "copied" to both counsel. In a noticeable difference, in In the Matter of the Bar Disciplinary Proceeding Against Karen C. Schneider, Attorney No. 016269, 2010 WL 2347409 (Salktine, C.J. July 12, 2010), the court agreed that the attorney could not ex parte communicate with the victim in the prosecution of her client for sexual assault charges under the circumstances of the case. Following the Impeachment of Judge Kenworthy, where the defendant requested to serve her sentence in home detention, the prosecutor emailed the victim about the request for home detention and also provided copies of her response emails with reports of sexual abuse received from the victim in the past. The attorney was later disqualified from the proceeding after a new judge was appointed, and argued that she did not intend to enter into a conversation with the victim; rather, the emails were generic and request for information. The court agreed that the emails were not intended to communicate directly, but under the rules the communications qualifications meant that the "information should not have been revealed to the victim without solicitation from the victim."
Advisory Opinions and Procedures for Seeking Guidance
When attorneys are unsure about how to navigate ethical dilemmas, they can seek an advisory opinion from the State Bar of Arizona. While advisory opinions are not controlled precedent (citing them would be a defense to a charge of professional misconduct), they are persuasive knowledge, and serve as an important guidance document. Advisory opinions have little to do with the facts of a case (which are hypothetical), but rather, they address the general applicability of certain rules to a situation.
To seek an advisory opinion, an attorney must submit a written request. The request must state whether the advice sought pertains to proposed or anticipated conduct, and then outline the relevant facts (or a concise hypothetical scenario). Then, it is incumbent upon the requesting attorney, to set forth their reasoning and their anticipated position on the relevant rule(s).
When drafting an advisory opinion, the state bar will consider several things, such as: if there are conflicting rules; if the conduct in question might be considered fraud; if the conduct would result in a misuse of confidential information or a conflict of interest .
Likewise, in the event that an attorney is facing a potential violation of the ethics rules, they may also be investigated by the state bar. Again, an attorney’s best defense is to recuse and disclose, in advance, any potential conflicts of interest.
As mentioned, advisory opinions are not binding, meaning that even though an attorney may ethically practice in a certain manner, their conduct is not immune from disciplinary action if a claim is made by a third-party that the attorney acted unethically. Generally speaking, however, advisory opinions are persuasive and helpful to attorneys wishing to avoid trouble.
Sometimes, attorneys are not sure when to recuse. In those times, the best course of action is to turn to the ethics rules as a guide. Additionally, as with all legal issues, attorneys must consult with each other about the ethics rules and how to flesh out the intricacies.
Importantly, we at the Avnet Law Firm are not authorized to give legal advice or guidance on the ethics rules or with respect to your particular case. We recommend that you contact the State Bar of Arizona after reviewing the ethics rules for any questions you may have.
Proposed Changes and Recent Amendments to the Ethics Rules
The Arizona Supreme Court has incorporated a number of changes to the ethics rules in recent years. The Arizona Rules of Professional Conduct have seen revisions in 2014, 2015, and most recently in January, 2018.
2014 REVISIONS
The 2014 revisions, containing substantial changes to several Rules, took the form of a new Rule 1.15 – Safekeeping Property. The changes codified in Rule 1.15 clarify the requirements for maintaining and safeguarding client property and required the establishment of a trust account as well as the mandatory training of a designee.
2015 REVISIONS
The 2015 amendments added a definition of "Firm" and required governments and other non-profit organizations to follow the same ethics rules as attorneys in private practice.
2018 REVISIONS
Most recently, in January 2018, the Arizona Supreme Court amended Rule 7.3 to clarify that any attorney wishing to solicit prospective clients must comply with newly approved standardized forms which are intended to protect the public by providing specific information on attorney fees and services provided.
Resources for Arizona Attorneys
A wealth of resources are available to Arizona attorneys seeking to better understand the ethics rules and stay current on the constantly evolving law. The State Bar of Arizona is charged with issuing the Rules of Professional Conduct and enforcing the Arizona Supreme Court’s Code of Judicial Administration, by which the State Bar can issue advisory opinions and warnings.
The Ethics and Practices Resource Center provides Arizona attorneys with a clearinghouse for ethics issues. It is a comprehensive resource offering a number of ethics-related links, including:
Official Documents
The State Bar publishes Advisory Opinions, Ethics Opinions, and Formal Ethics Opinions. An Advisory Opinion is a general educational resource that covers various ethical topics, while the other resources are issued in a question-answer format and are intended to address specific ethical dilemmas faced by attorneys.
Documents are arranged by spread sheets, categorized according to whether they are issued by the State Bar of Arizona or the Arizona Supreme Court. For the State Bar documents, case number, publication date, and office code numbers (i.e. opinions issued by the Ethics and Civil Practices Department) are also provided. In addition to being applicable to the State Bar , documents issued by the Arizona Supreme Court are available as PDFs via the Superior Court of Arizona’s website.
The following State Bar publications are available:
Many of the publications are available online, though the best way to ensure that you’re looking at the latest version is to purchase a copy for your personal library.
Other resources can be found on the State Bar’s Ethics and Practices resource page, including:
Seminars and Courses
Ethics seminars are regularly held throughout the year by the State Bar, including the annual Professional Responsibility Seminar, an Ethics-Only Track of the April Annual Convention, and an Ethics/Skills Combo Seminar. Many Arizona CLE programs offered by outside providers also have ethics-related segments.
Ethics-related courses offered by the State Bar include:
Listing of all upcoming CLE courses can be viewed here.
Arizona Legal Ethics Blog
Written by Reginald Dwyer, Attorney Ethics Counsel at the State Bar of Arizona, the Arizona Legal Ethics Blog discusses current case law addressing ethical issues facing Arizona attorneys and general observations about the practice of law in Arizona.
Please check back often as upcoming materials, links, and resources will be added to this section.