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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Arizona Legal Ethics

1.3   Rule 1.3 Diligence

1.3:100   Comparative Analysis of Arizona Rule

1.3:101      Model Rule Comparison

The 2003 amendments to the Arizona Rules of Professional Conduct left AZ-ER 1.3 substantively unchanged.

AZ-ER 1.3 is identical to MR 1.3. There are differences, however, between the Comments that accompany the two Rules. Paragraph 1 of the Comment to AZ-ER 1.3 eliminates the phrase, which is retained in the Comment to MR 1.3, that a lawyer is required to act "with zeal in advocacy upon the client's behalf." The Comment to AZ-ER 1.3 does not contain paragraph 5 of the Comment to MR 1.3, which discusses what steps the duty of diligence may require sole practitioners to undertake to prevent neglect of client matters in the event of the sole practitioner's death or disability.

1.3:102      Model Code Comparison

DR 6-101(A)(3) of the former Code of Professional Responsibility required that a lawyer not "neglect a matter entrusted to him." EC 6-4 stated that a lawyer should "give appropriate attention to his legal work."

Canon 7 stated that "[a] lawyer should represent a client zealously within the bounds of the law." DR 7-101(A)(1) provided that "[a] lawyer shall not intentionally . . . [f]ail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules . . . ." DR 7-101(A)(3) provided that "[a] lawyer shall not intentionally . . . prejudice or damage his client during the course of the relationship. . . ."

1.3:200   Diligence and "Zeal"

AZ-ER 1.3 imposes upon all attorneys an obligation to "act with reasonable diligence and promptness in representing a client." As the Comment to the Rule explains:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See ER 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

Comment, AZ-ER 1.3, 1.

AZ-ER 1.3's requirement that a lawyer represent a client diligently goes, both logically and practically, "hand-in-glove" with the requirement of AZ-ER 1.1 that a lawyer act competently and the requirement of AZ-ER 1.2 that a lawyer carry out an engagement, and it is common to see all three rules relied upon as a basis for the imposition of discipline where a lawyer has simply failed or neglected to complete an engagement for which the lawyer was retained. See Matter of Brady, 186 Ariz. 370, 923 P.2d 836 (1996); Matter of Brown, 184 Ariz. 480, 910 P.2d 631 (1996); Matter of Woltman, 181 Ariz. 525, 892 P.2d 861 (1995); Matter of Secrist, 181 Ariz. 526, 892 P.2d 862 (1995); Matter of Blasnig, 181 Ariz. 356, 890 P.2d 1141 (1995); Matter of Coburn, 181 Ariz. 608, 889 P.2d 608 (1995); Matter of Kobashi, 181 Ariz. 253, 889 P.2d 611 (1995); Matter of Davis, 181 Ariz. 263, 889 P.2d 621 (1995); Matter of Peartree, 180 Ariz. 518, 885 P.2d 1083 (1994); Matter of Higgins, 180 Ariz. 396, 884 P.2d 1094 (1994); Matter of Taylor, 180 Ariz. 290, 883 P.2d 1046 (1994); Matter of Gamble, 180 Ariz. 145, 882 P.2d 1271 (1994); Matter of Chard, 180 Ariz. 1, 881 P.2d 333 (1994); Matter of Engan, 180 Ariz. 13, 881 P.2d 345 (1994); Matter of Feeley, 180 Ariz. 41, 881 P.2d 1146 (1994); Matter of Manning, 180 Ariz. 45, 881 P.2d 1150 (1994); Matter of Secrist, 180 Ariz. 50, 881 P.2d 1155 (1994); Matter of Kaplan, 179 Ariz. 175, 877 P.2d 274 (1994); Matter of Struthers, 179 Ariz. 216, 877 P.2d 789 (1994); Matter of Hansen, 179 Ariz. 229, 877 P.2d 802 (1994); Matter of Carrasco, 178 Ariz. 468, 875 P.2d 127 (1994); Matter of Woltman, 178 Ariz. 548, 875 P.2d 781 (1994); Matter of Bowen, 178 Ariz. 283, 872 P.2d 1235 (1994); Matter of Peartree, 178 Ariz. 114, 871 P.2d 235 (1994); Matter of Augenstein, 178 Ariz. 133, 871 P.2d 254 (1994); Matter of Giles, 178 Ariz. 146, 871 P.2d 693 (1994); Matter of Augenstein, 177 Ariz. 581, 870 P.2d 399 (1994); Matter of Kobashi, 177 Ariz. 584, 870 P.2d 402 (1994); Matter of Wurtz, 177 Ariz. 586, 870 P.2d 404 (1994); Matter of Gawlowski, 177 Ariz. 311, 868 P.2d 324 (1994); Matter of O'Brien-Reyes, 177 Ariz. 362, 868 P.2d 945 (1994); Matter of Elowitz, 177 Ariz. 240, 866 P.2d 1526 (1994); Matter of Carrasco, 176 Ariz. 459, 862 P.2d 219 (1993); Matter of Mybeck, 176 Ariz. 310, 861 P.2d 595 (1993); Matter of Redondo, 176 Ariz. 334, 861 P.2d 619 (1993); Matter of Feeley, 176 Ariz. 196, 859 P.2d 1329 (1993); Matter of Miranda, 176 Ariz. 202, 859 P.2d 1335 (1993); Matter of Riddle, 175 Ariz. 379, 857 P.2d 1233 (1993); Matter of Evans, 175 Ariz. 404, 857 P.2d 1258 (1993); Matter of Brown, 175 Ariz. 134, 854 P.2d 768 (1993); Matter of Soelter, 175 Ariz. 139, 854 P.2d 773 (1993); Matter of Nelson, 174 Ariz. 589, 852 P.2d 404 (1993); Matter of Wolfram, 174 Ariz. 49, 847 P.2d 94 (1993); Matter of Ziman, 174 Ariz. 61, 847 P.2d 106 (1993); Matter of Blasnig, 174 Ariz. 9, 846 P.2d 822 (1993); Matter of Cassalia, 173 Ariz. 372, 843 P.2d 654 (1992); Matter of La Paglia, 173 Ariz. 379, 843 P.2d 1271 (1992); Matter of Offenhartz, 173 Ariz. 382, 843 P.2d 1274 (1992); Matter of Sadacca, 172 Ariz. 173, 836 P.2d 386 (1992); Matter of LaLonde, 172 Ariz. 60, 834 P.2d 146 (1992); Matter of Coburn, 171 Ariz. 533, 832 P.2d 186 (1992); In re Coffey, 171 Ariz. 544, 832 P.2d 197 (1992);Matter of Talmadge, 171 Ariz. 548, 832 P.2d 201 (1992); Matter of Loftus, 171 Ariz. 672, 832 P.2d 689 (1992); Matter of Ames, 171 Ariz. 125, 829 P.2d 315 (1992); Matter of Rubenstein, 170 Ariz. 524, 826 P.2d 1150 (1992); Matter of Engan, 170 Ariz. 409, 825 P.2d 468 (1992); Matter of Nelson, 170 Ariz. 345, 824 P.2d 741 (1992); Matter of Lincoln, 170 Ariz. 267, 823 P.2d 1275 (1992); Matter of Miranda, 170 Ariz. 270, 823 P.2d 1278 (1992); Matter of Mulhall, 170 Ariz. 152, 822 P.2d 947 (1992); Matter of Grant, 169 Ariz. 498, 821 P.2d 159 (1991); Matter of Rantz, 169 Ariz. 56, 817 P.2d 1 (1991); Matter of Gaynes, 168 Ariz. 574 (1991); Matter of Smith, 168 Ariz. 357, 813 P.2d 722 (1991); Matter of Hiser, 168 Ariz. 359, 813 P.2d 724 (1991); Matter of Espino, 168 Ariz. 139, 811 P.2d 1076 (1991); Matter of Henry, 168 Ariz. 141, 811 P.2d 1078 (1991); Matter of Lincoln, 165 Ariz. 233, 798 P.2d 371 (1990); Matter of Young, 164 Ariz. 502, 794 P.2d 135 (1991); Matter of Galusha, 164 Ariz. 503, 794 P.2d 136 (1990); Matter of Cardenas, 164 Ariz. 149, 791 P.2d 1032 (1990); Matter of Tarletz, 163 Ariz. 548, 789 P.2d 1049 (1990); Matter of MacAskill, 163 Ariz. 354, 788 P.2d 87 (1990); Matter of Anderson, 163 Ariz. 362, 788 P.2d 95 (1990); Matter of Blankenburg, 143 Ariz. 365, 694 P.2d 195 (1984).

The imposition of discipline, accordingly, is clearly warranted where an attorney fails to act with reasonable diligence in representing a client and causes injury, or even potential injury, to the client. See Matter of Mybeck, 176 Ariz. 310, 861 P.2d 595 (1993); Matter of Ames, 171 Ariz. 125, 829 P.2d 315 (1992). A failure to respond to discovery requests which results in the entry of judgment against the lawyer's client is a clear violation of AZ-ER 1.3, justifying disciplinary sanctions against the offending attorney. See Matter of Cassalia, 173 Ariz. 372, 843 P.2d 654 (1992). Finally, in Matter of Hirschfeld, 192 Ariz. 40, 42, 960 P.2d 640, 642 (1998), the Supreme Court had little difficulty finding that AZ-ER 1.3 had been violated by a domestic relations attorney who fled the jurisdiction to avoid judicial sanctions that had been imposed in a client's case, and failed to find substitute counsel for his remaining clients, essentially leaving them to fend for themselves.

The obligation to represent clients with diligence imposes upon attorneys a concomitant obligation to control their caseloads so that they are in a position to do so. Thus, in Arizona Ethics Opinion No. 90-10, the Committee on the Rules of Professional Conduct ("the Committee") held that a Public Defender whose estimated caseload greatly exceeded the standards announced in State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984) had an ethical duty to decline new cases, if possible, or to withdraw from previous engagements until the caseload became manageable. Similarly, in Arizona Ethics Opinion No. 86-04, the Committee ruled that when an attorney who has entered into a contract with a city attorney's office to prosecute criminal cases determines that the caseload is not manageable, the attorney has a continuing ethical duty to accept no more cases than can be competently prosecuted at any given time during the contract.

In Arizona Ethics Opinion No. 87-19, the Committee considered an inquiry from an attorney who had discovered that conversations held in so-called "Quiet Rooms," which were rooms in a detention facility segregated for purportedly private conversations between detainees and public defenders, were being monitored by detention staff personnel. The Committee advised the inquiring lawyer that this fact should be disclosed to the Presiding Judge of the County in which the facility was maintained, and should cease conducting any further conferences with detainees in the facilities in question. The Committee also counseled the inquiring attorney to determine the extent of any prejudice to clients previously interviewed in the "Quiet Rooms," and, if appropriate, to initiate court proceedings to seek a suitable remedy. Finally, the inquiring attorney was advised to request that a truly confidential area be provided for conferences with clients and that the court be petitioned, if necessary, to secure compliance with that request.

1.3:300   Promptness

An independent requirement imposed upon attorneys by AZ-ER 1.3 is that they act with "promptness" in representing clients. As the Comment to the Rule observes:

Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations the client's legal position can be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.

Comment, AZ-ER 1.3, 3.

Under this aspect of the Rule, an attorney has an obligation to process litigation expeditiously, and to pursue clients' cases diligently. See Matter of Gawlowski, 177 Ariz. 311, 868 P.2d 324 (1994). The Comment to this aspect of the Rule makes clear, however, that: "A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client." Comment to AZ-ER 1.3, 3.

Both the "diligence" and "promptness" requirements of AZ-ER 1.3 are violated when an attorney fails to promptly notify clients of the receipt of funds on their behalf, fails to promptly remit those funds to clients entitled to receive them, delays in responding to clients' inquiries and requests for access to their files, and delays in preparing and filing papers on their behalf. Matter of Struthers, 179 Ariz. 216, 877 P.2d 789 (1994).

In Matter of O'Brien-Reyes, 177 Ariz. 362, 868 P.2d 945 (1994), the Court found that AZ-ER 1.3 had been violated by an attorney who failed to file a timely notice of appeal from a client's DUI conviction, failed to file a motion to reconsider until after four months following the court's decision involved, and failed to keep the client apprised of the status of the case. In that case, however, the Court concluded that censure with probation was an appropriate sanction because the attorney's lack of diligence was negligent, rather than knowing and intentional, and resulted, at least in part, from severe health and personal problems, combined with staff cutbacks at the attorney's firm.