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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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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arizona Legal Ethics

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of Arizona Rule

1.4:101      Model Rule Comparison

The 2003 amendments moved to this Rule certain of the obligations to communicate with clients previously contained in AZ-ER 1.2. Paragraph (a) was expanded to identify five specific categories of information that a lawyer must communicate to a client. A new paragraph (c) was added imposing an obligation on lawyers in criminal cases an obligation to promptly inform clients of preferred plea agreements. The Comment to the Rule was modified to reflect these changes.

As a consequence of the 2003 amendments, there are now some differences between AZ-ER 1.4 and its accompanying Comment and MR 1.4 and its accompanying Comment. AZ-ER 1.4 contains a paragraph (c), not contained in MR 1.4, imposing an obligation to promptly inform clients in criminal cases of proffered plea agreements, and the paragraph 2 of the Comment to both Rules differs because of that. In addition, paragraph 6 of the Comment to AZ-ER 1.4 refers to a client suffering from "mental disability," while that paragraph in the Comment to MR 1.4 uses the term "diminished capacity."

1.4:102      Model Code Comparison

There was no direct counterpart in the former Code of Professional Responsibility to AZ-ER 1.4. As the discussion below indicates, failures to communicate and/or consult with clients were generally viewed as a violation of DR 6-101(A)(3), which provided that a lawyer shall not "[n]eglect a legal matter entrusted to him." In addition, DR 9-102(B)(1) provided that a lawyer "shall promptly notify a client of the receipt of his funds, securities, or other properties. EC 7-8 stated that "[a] lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." EC 9-2 stated that "a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client."

1.4:200   Duty to Communicate with Client

AZ-ER 1.4 deals generally with a lawyer's obligations to communicate information to a client concerning the subject matter of the representation. AZ-ER 1.4(a) delineates five specific aspects of the duty to communicate. Under that Rule, a lawyer must "(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in ER 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law." AZ-ER 1.4(c) imposes a specific obligation on lawyers handling criminal matters to promptly inform clients "of all proffered plea agreements." AZ-ER 1.4(b) superimposes on all communications with clients, including those specifically delineated in paragraphs (a) and (c), an obligation to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

AZ-ER 1.4 does more than simply require attorneys to answer telephone calls from clients; it creates an affirmative duty to keep clients advised of important aspects of the matters they have entrusted to the lawyer to handle. See Matter of Cardenas, 164 Ariz. 149, 791 P.2d 1032 (1990). The Comment to AZ-ER 1.4 recognizes that the amount of information sufficient to keep a client "reasonably informed" so that the client can make "informed decisions" will vary depending on the nature of the engagement and the client's willingness and ability to be involved in those decisions:

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance involved. For example, where there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation . . .

Comment, AZ-ER 1.4, 5.

In the ordinary case, "the information to be provided is that appropriate for a client who is a comprehending and responsible adult." Comment, AZ-ER 1.4, 6. Where that is not the case, as where the client suffers from a disability, the lawyer may need to take special steps to insure that the requirements of AZ-ER 1.4 are satisfied. See AZ-ER 1.14. On the other hand, the Committee on the Rules of Professional Conduct ruled, in Arizona Ethics Opinion No. 86-02, that an attorney appointed by the juvenile court to represent a juvenile defendant on criminal charges is not obligated to discuss legal decisions with, or to provide legal information and materials to, the juvenile's parents.

There are very limited circumstances where "a lawyer may be justified in delaying the transmission of information when the client would be likely to react imprudently to an immediate transmission." Comment, AZ-ER 1.4, 7. The only example provided is "a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client." Id. A lawyer must also, by reason of AZ-ER 3.4(c), honor and abide by a court order limiting the dissemination of information, even if that order precludes disclosure of information to the client. Id.

In Arizona Ethics Opinion No. 2001-02, the Committee on the Rules of Professional Conduct ("the Committee") held that, notwithstanding the restrictions of AZ-ER 1.6, an attorney may disclose to the authorities information concerning exploitation or abuse of a vulnerable adult, if required to do so by A.R.S. § 46-454, which the attorney learns during the course of representing an incapacitated person, a vulnerable adult or someone who owes a fiduciary duty to such a person, even though the attorney's client does not want the attorney to report the information. With respect to AZ-ER 1.4, the Committee advised lawyers to disclose, at the outset of such a representation, that circumstances might develop that may require the attorney to report information under the statute.

In Arizona Ethics Opinion No. 2001-08, the Committee ruled that, when a client moves without leaving a forwarding address, and fails to communicate with the lawyer, the client renders the representation unreasonably difficult, and the lawyer may withdraw under AZ-ER 1.16(b)(5). Notwithstanding, the lawyer must still make reasonable efforts to inform the client of the attorney's intent to withdraw and must use reasonable diligence to locate the client in order to do so.

Wholly aside from the fact that it is now an ethical obligation, full and frank communication between the lawyer and the client, both at the inception of the engagement and as it progresses, is also ordinarily in the lawyer's best interests, as it serves to clarify the nature and scope of the engagement, as well as the respective roles of the lawyer and the client in accomplishing its objectives, and avoids misunderstandings on the part of the client. Thus, in Matter of Curtis, 184 Ariz. 256, 908 P.2d 472 (1995), Curtis was charged with failing to handle client matters competently and failing to adequately communicate with clients, in connection with his representation of a client in connection with a dispute arising from a contract between the client and a contractor for the construction of a pool at the client's residence. The contractor went bankrupt, and Curtis looked into the bankruptcy and advised the client that, as the contractor had no assets, there was no point in the client submitting a claim. The client, however, claimed that the scope of Curtis' engagement included seeking to have the bankruptcy stay lifted so that the client could seek relief from the Contractor's Recovery Fund. Curtis denied that such actions were within the scope of his engagement, but the engagement arrangements were ambiguous. Both the Disciplinary Commission and the Court resolved the issue against Curtis, relying at least in part on the fact that Curtis had the opportunity to clear up any misunderstandings and failed to do so. As the Court observed:

Yet, Respondent failed to explain to Client what further information or steps were necessary to pursue the claim against the Fund so that Client could either provide the information or make an informed decision on whether to continue with the claim. Furthermore, Respondent failed to return many of Client's telephone calls because he believed he no longer represented Client. It should have been abundantly clear to him, by the frequency of Client's calls, that Client might not consider the representation terminated. It was therefore incumbent on Respondent to clarify the matter.

Id., 184 Ariz. at 262, 908 P.2d at 478. See also Matter of Peartree, 180 Ariz. 518, 885 P.2d 1083 (1994). In Matter of Chard, 180 Ariz. 1, 881 P.2d 1150 (1994), one of the bases for imposing discipline was the fact that Chard had failed to adequately advise a client about the basis for his fees. In Matter of Fioramanti, 176 Ariz. 182, 859 P.2d 1315 (1993), Fioramanti was found to have violated AZ-ER 1.4 in one matter where, at the request of a husband, he undertook representation of both husband and wife, who were in the process of securing a divorce, in litigation in which they had both been named, without advising the wife that she was a defendant and that he was going to represent her, and without talking to her to see if she had any available defenses.

In Arizona Ethics Opinion No. 2001-02, the Committee on the Rules of Professional Conduct ruled that, notwithstanding the obligations imposed by AZ-ER 1.6, an attorney may disclose to the authorities information concerning exploitation or abuse of a vulnerable adult, if required to do so by A.R.S. § 46-454, which the attorney learns during the course of representing an incapacitated person, a vulnerable adult, or someone who owes a fiduciary duty to such a person, even though the attorney's client does not want the attorney to report the information. The Committee advised lawyers to disclose, at the outset of such an engagement, that circumstances might develop that might require the attorney to report information under the statute.

Despite the benefits and advantages of doing so, failure to communicate adequately with clients has been over the years one of the most frequent sources of complaints concerning lawyers lodged with the disciplinary authorities of the State Bar of Arizona. Correspondingly, violations of AZ-ER 1.4 also appear to be one of the more frequently cited bases for the imposition of discipline on Arizona lawyers. Unfortunately, in many instances, the Opinion of the Supreme Court and/or the Order of the Disciplinary Commission imposing discipline for such violations does not describe the underlying conduct in any detail beyond characterizing it as "failure to adequately communicate with clients," or "failure to keep clients adequately informed." See Matter of Woltman, 181 Ariz. 525, 892 P.2d 861 (1995); Matter of Kobashi, 181 Ariz. 253, 889 P.2d 611 (1995); Matter of Carrasco, 178 Ariz. 468, 875 P.2d 127 (1994); Matter of Woltman, 178 Ariz. 548, 875 P.2d 781 (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 1326 (1994); Matter of Redondo, 176 Ariz. 314, 861 P.2d 619 (1993); Matter of Nelson, 174 Ariz. 589, 852 P.2d 404 (1993); Matter of Martinez, 174 Ariz. 197, 848 P.2d 282 (1993); Matter of Blasnig, 174 Ariz. 9, 846 P.2d 822 (1993); Matter of Rice, 173 Ariz. 376, 843 P.2d 1268 (1992); Matter of La Paglia, 173 Ariz. 379, 843 P.2d 1271 (1992); Matter of Talmadge, 171 Ariz. 548, 832 P.2d 201 (1992); Matter of Ames, 171 Ariz. 125, 829 P.2d 315 (1992); Matter of Engan, 170 Ariz. 409, 825 P.2d 468 (1992); Matter of Miranda, 170 Ariz. 270, 823 P.2d 1278 (1992); Matter of Grant, 169 Ariz. 498, 821 P.2d 159 (1991); Matter of Rantz, 169 Ariz. 256, 817 P.2d 1 (1991); Matter of Espino, 168 Ariz. 139, 811 P.2d 1076 (1991); Matter of Young, 164 Ariz. 149, 791 P.2d 1032 (1990); Matter of Anderson, 163 Ariz. 362, 788 P.2d 95 (1990).

In Matter of Brown, 184 Ariz. 480, 910 P.2d 631 (1996), the Court directed a nine-month suspension of a lawyer who had previously been suspended once, censured three times, twice placed on probation, and given three informal reprimands, for failure to advise clients of the status of their matters, and failure to advise them of his suspension. In Matter of Coburn, 181 Ariz. 250, 889 P.2d 608 (1995), the Disciplinary Commission suspended Coburn from the practice of law for two years for a variety of ethical violations, including failure to advise clients of a prior suspension, failure to advise certain estate planning clients that he had misplaced certain of their documents, failure to advise them of the status of the matter he was handling for them, and failure to advise them when he changed office locations. In Matter of Feeley, 180 Ariz. 41, 881 P.2d 1146 (1994), Feeley was disbarred by the Disciplinary Commission for a variety of ethical violations, including violations of AZ-ER 1.4. The latter violations stemmed from Feeley's failure to advise clients of a former suspension, and his failure to advise another client of developments in a bankruptcy matter which were of importance.

In Matter of Secrist, 180 Ariz. 50, 881 P.2d 1155 (1994), the Disciplinary Commission disbarred Secrist for a variety of violations of the ethical rules, including violations of AZ-ER 1.4 arising out of his handling of three matters, and consisting of: (1) failing to respond to one client's inquiries about the status of her matter and misinforming her as to whether a student loan could be discharged in bankruptcy, (2) failing to respond to a client's inquiries in another matter, and (3) failing to respond to a third client's requests for information. In Matter of Bowen, 178 Ariz. 283, 872 P.2d 1235 (1994), the Supreme Court approved a Disciplinary Commission recommendation that Bowen be suspended for a period of one year for ethical violations, including violations of AZ-ER 1.4, in connection with the handling of two separate client matters. In one matter, Bowen filed litigation on behalf of clients and then had only three contacts with them over a period of two and-one half years, and even then failed to respond to two specific inquiries for information. In Matter of Peartree, 178 Ariz. 114, 871 P.2d 235 (1994), the Disciplinary Commission disbarred Peartree for a variety of ethical violations arising out of his abandonment of his law practice. In the process of doing that, Peartree failed to advise his clients that he was leaving the practice of law and failed to advise them of the status of their cases.

In Matter of Giles, 178 Ariz. 146, 871 P.2d 693 (1994), the Court approved a ninety (90) day suspension of Giles for a variety of ethical violations, including violations of AZ-ER 1.4. The Court noted that Giles (1) had failed to advise one client that he had not secured a writ of garnishment, as requested, with the consequence that the client continued to pay the premium for the garnishment bond, (2) failed to return phone calls from that client, and (3) failed to advise another client that his failure to file a pretrial statement caused the client's case to be dismissed. In Matter of Wurtz, 177 Ariz. 586, 870 P.2d 404 (1994), the Disciplinary Commission disbarred Wurtz for accepting representation of, and retainers from, clients in eleven separate matters, performing little or no work on their cases, and failing to communicate with them. In Matter of Redeker, 177 Ariz. 305, 868 P.2d 318 (1994), the Disciplinary Commission disbarred Redeker for a variety of ethical violations, including violations of AZ-ER 1.4. The Commission cited with approval the report from the Hearing Committee, which had found that, after accepting representation of clients, Redeker became very difficult to contact, and:

. . . failed to keep the client even minimally informed as to the progress of the case, refused to respond to telephone calls and letters from clients, and made virtually no attempt to clear up the confusion each client was clearly experiencing over Respondent's handling of the case.

Id., 177 Ariz. at 307, 868 P.2d at 320.

In Matter of Evans, 175 Ariz. 404, 857 P.2d 1258 (1993), the Disciplinary Commission directed that Evans be publicly censured for a variety of ethical violations, including several violations of AZ-ER 1.4. Those violations were based upon: (1) ceasing communication with a client after a temporary custody and support hearing and failing to advise the client subsequently that a cessation of monthly payments would require his withdrawal, and (2) losing a client's file and failing to advise the client of that and of the status of the case. In Matter of Brown, 175 Ariz. 134, 854 P.2d 768 (1993), the Commission suspended Brown for a period of six months for a variety of ethical violations, including failing to advise clients of the ramifications of joint representation, failing to adequately advise one client concerning a contract into which she was about to enter and failing to adequately communicate with two other clients. In Matter of Soelter, 175 Ariz. 139, 854 P.2d 773 (1993), the Commission disbarred Soelter for a variety of ethical violations, including violations of AZ-ER 1.4, which the Commission described as: "[H]e failed to communicate with his clients, failing to return telephone calls and respond to letters." Id., 175 Ariz. at 140, 854 P.2d at 774. In Matter of Sadacca, 172 Ariz. 173, 836 P.2d 386 (1992), the Disciplinary Commission directed that Sadacca be publicly censured after he admitted that his failure to respond to clients' letters and telephone calls, including a letter requesting an accounting, for a period of eight months violated AZ-ER 1.4.

In Matter of Rubenstein, 170 Ariz. 524, 826 P.2d 1150 (1992), the Disciplinary Commission directed that Rubenstein be publicly censured for a number of ethical transgressions arising out of his abandonment of his law practice. These included violations of AZ-ER 1.4, which were based on the fact that: "[R]espondent stopped contacting clients, stopped returning phone calls, and locked and eventually closed his office." Id., 170 Ariz. at 526, 826 P.2d at 1152. In Matter of Gaynes, 168 Ariz. 574, 816 P.2d 231 (1991), the Supreme Court approved a recommendation of the Disciplinary Commission that Gaynes be disbarred for a variety of ethical violations, including violations of AZ-ER 1.4. One such violation was based on the fact that Gaynes failed to respond to requests from a client for information concerning the status of his case for two and one-half years. In Matter of Smith, 168 Ariz. 357, 813 P.2d 722 (1991), the Supreme Court approved a Disciplinary Commission recommendation that Smith be disbarred for a variety of ethical violations, most of which resulted from his abandonment of the state and his law practice, without making any arrangements for anyone to take over his practice and rendering client's attempts to contact him futile.

Finally, even though the prior Code of Professional Responsibility did not specifically impose a requirement of keeping clients advised of the status of their matters, that was viewed as an aspect of the lawyer's obligation to handle legal matters competently. Thus, in Matter of Blankenburg, 143 Ariz. 365, 694 P.2d 195 (1984), the Court approved a recommendation of what was then called the Disciplinary Board that Blankenburg be disbarred for various acts of misconduct. One of the specific allegations against Blankenburg was that he failed to stay in touch with a client who had retained him, had not returned her phone calls, and failed to respond to three registered letters from her, which were returned as unclaimed. The Court found that this conduct was adequate basis for concluding that Blankenburg had neglected a legal matter, in violation of DR 6-101(A)(3).

It is perhaps not surprising that charges of a failure to keep clients adequately informed, in violation of AZ-ER 1.4, are combined with allegations that the lawyer has also failed to handle a matter competently and diligently, in violation of AZ-ER 1.1 and 1.3. There is a natural reluctance on the part of lawyers to advise clients that their matters have been neglected and/or mishandled. As the Comment to AZ-ER 1.4 makes clear, however, that does not justify failing to keep the client informed concerning developments in a matter, even if they suggest or result from the lawyer's failing to act competently and/or diligently: "[A] lawyer may not withhold information to serve the lawyer's own interest or convenience."

In Matter of Brady, 186 Ariz. 370, 923 P.2d 836 (1996), the Supreme Court approved a recommendation of the Disciplinary Commission that Brady be disbarred for a variety of ethical violations. The violations of AZ-ER 1.4 in which Brady was found to have engaged included misleading clients by telling them things had been accomplished when they had not been, failing to advise clients that he had lost their stock certificates, and failing to advise a client to appear at a settlement conference with the result that sanctions were imposed on the client. In Matter of Secrist, 181 Ariz. 526, 892 P.2d 862 (1995), the Disciplinary Commission added a one-year suspension to Secrist's previous disbarment for failure to advise clients for whom he was handling a bankruptcy matter that he was abandoning his law practice. In addition:

Secrist informed his client that he would file a motion to dismiss his Chapter 11 action as well as a motion to convert it to a Chapter 7 proceeding. He failed to do so. Secrist failed to file other necessary documents in connection with the bankruptcy, and failed to appear for a bankruptcy court hearing in December 1990; the client appeared on his own. Secrist told the client that he had prepared documents concerning the bankruptcy proceedings and had submitted them to counsel for the Internal Revenue Service, when, in fact, he had not done so.

Id., 181 Ariz. at 527, 892 P.2d at 863.

In Matter of Gamble, 180 Ariz. 145, 882 P.2d 1271 (1994), the Disciplinary Commission directed that Gamble be publicly censured and placed on two years' probation for violations of AZ-ER 1.3 and 1.4 arising out of his representation of an inmate at the Arizona State Penitentiary. The inmate contacted Gamble, entered into a fee agreement in September 1989, and sent Gamble his case file in November 1989. Hearing nothing further, the client wrote Gamble on December 5, 1989, inquiring about the status of the case. Gamble did not respond until March 1, 1990, by which point the client had learned that Gamble had not even entered an appearance until February 2, 1990. The defendant had filed a motion for summary judgment on February 8, 1990, and served the client directly because defendant's counsel had not yet received Gamble's notice of appearance. Having heard nothing further from Gamble, the client responded to the motion by himself. The defendant's motion was granted, but that did not resolve the entire case. On January 29, 1991, the client wrote to Gamble to ask who was responsible for the cost of deposition transcripts, and Gamble again did not respond. The defendant filed another motion for summary judgment based on the statute of limitations in June 1991. This motion was granted in August 1991, and Gamble filed a motion for reconsideration, which was denied. Gamble failed to advise the client of the denial of that motion, so the client was unable to file a timely notice of appeal. In Matter of Manning, 180 Ariz. 45, 881 P.2d 1150 (1994), the Disciplinary Commission ordered Manning suspended from the practice of law for four years for a variety of ethical violations arising out of his handling of six cases. The Commission, in discussing the charged violations of AZ-ER 1.4, found that Manning: "accepted retainers to handle clients' cases, then failed to file anything with the court on the clients' behalf, all the while assuring the clients that their cases were going smoothly." Id., 180 Ariz. at 46, 881 P.2d at 1151.

In Matter of Kaplan, 179 Ariz. 175, 877 P.2d 874 (1994), the Disciplinary Commission directed that Kaplan be publicly censured and placed on probation for one year for conduct in the handling of certain client matters which Kaplan admitted violated AZ-ER 1.1, 1.4, 1.4 and/or 1.6. The admitted violations of AZ-ER 1.4 consisted of his failing to adequately communicate with clients in two separate matters - in one instance, failing to advise the client that the client's case had been dismissed, and in the other, failing to advise the client that the defendants could not be located and to consult with them concerning what course of action to pursue. In Matter of Giles, 178 Ariz. 146, 871 P.2d 693 (1994), the Court approved a ninety (90) day suspension of Giles for a variety of ethical violations, including violations of AZ-ER 1.4. The Court noted that Giles (1) had failed to advise one client that he had not secured a writ of garnishment, as requested, with the consequence that the client continued to pay the premium for the garnishment bond, (2) failed to return phone calls from that client, and (3) failed to advise another client that his failure to file a pretrial statement caused the client's case to be dismissed.

In Matter of Augenstein, 177 Ariz. 581, 870 P.2d 399 (1994), the Disciplinary Commission found that Augenstein had violated AZ-ER 1.4 by failing to keep a client apprised of the status of a personal injury matter for which he had been retained, with the result that the client eventually had to settle the case for much less than it was worth. In Matter of Carrasco, 176 Ariz. 459, 862 P.2d 219 (1993), the Disciplinary Commission suspended Carrasco for six months for failing to handle two matters competently, and failing to keep the clients in those matters adequately informed of their status. With respect to one of the matters involved, the Commission observed:

Throughout his representation of A, Respondent failed to maintain adequate communication with her. He did not keep her informed of the status of the case, including failing to tell her that the case had been dismissed for lack of prosecution. As a result, even after the case had been dismissed, Client A believed that it was still being actively pursued.

Id., 176 Ariz. at 460, 862 P.2d at 220.

In Matter of Mybeck, 176 Ariz. 310, 861 P.2d 595 (1993), the Disciplinary Commission directed that Mybeck be publicly censured and placed on probation for two years for misconduct in connection with the mishandling of a matter which Mybeck essentially admitted, although he claimed that the problems incurred in the matter were in large part the fault of the client. He failed to participate in discovery procedures, with the result that the client's answer was stricken, but claimed that the client failed to cooperate with him and was aware that it had no defense. The Commission observed:

Respondent's failure to participate in the litigation was done without the Clients' permission. He did not specifically inform his Clients of his failure to participate, and did not inform them of the default and judgment entered against them.

Id., 176 Ariz. at 312, 861 P.2d at 597. The Commission found that the failure to participate in the litigation was a conscious strategy decision, but that the failure to communicate with clients was an ethical violation. In Matter of Boettcher, 176 Ariz. 314, 861 P.2d 599 (1993), the Disciplinary Commission directed that Boettcher be publicly censured pursuant to an agreement for discipline by consent. Boettcher's problems arose out of his handling of a personal injury action for a client with whom, the Commission observed, Boettcher maintained minimal contact. He also mishandled the case badly, resulting in its dismissal and the institution of a malpractice action against him.

In Matter of Feeley, 176 Ariz. 196, 859 P.2d 1329 (1993), the Disciplinary Commission directed that Feeley be disbarred for a variety of ethical violations, including violations of AZ-ER 1.4. The latter violations were based upon: (1) Feeley's failure to respond to client requests for an accounting of funds from a dissolved partnership, (2) Feeley advising a client that he had filed a motion for summary judgment and that it had been granted, when in fact the motion had been denied, and (3) Feeley advising a client that the client had been awarded damages in a suit and Feeley was pursuing a claim for attorneys' fees, when in fact the suit had been dismissed for lack of prosecution. In Matter of Riddle, 175 Ariz. 379, 857 P.2d 1233 (1993), the Disciplinary Commission suspended Riddle for eighteen (18) months for the mishandling of a plaintiff's medical malpractice action. The Commission found that Riddle had violated AZ-ER 1.2, 1.3 and 1.4, with the latter determination being based upon the fact that Riddle had failed to respond to the client's repeated requests for information, and had failed to advise the client that summary judgment, as well as a judgment for costs, had been entered against her. In Matter of Evans, 175 Ariz. 404, 857 P.2d 1258 (1993), the Disciplinary Commission directed that Evans be publicly censured for a variety of ethical violations, including several violations of AZ-ER 1.4. Those violations were based upon: (1) ceasing communication with a client after a temporary custody and support hearing and failing to advise the client subsequently that a cessation of monthly payments would require his withdrawal, and (2) losing a client's file and failing to advise the client of that and of the status of the case.

In Matter of Cassalia, 173 Ariz. 372, 843 P.2d 654 (1992), the Disciplinary Commission suspended Cassalia for six months for violations of AZ-ER 1.1, 1.3, 1.4, 3.2, 3.4 and 8.4 arising out of his handling of litigation on behalf of a married couple. With respect to the violations of AZ-ER 1.4 that were found, the Commission simply observed that Cassalia had failed to keep his clients adequately informed of the status of their case, which had in fact been dismissed for his failure to respond to discovery requests and to comply with a discovery order. In Matter of Coburn, 171 Ariz. 533, 832 P.2d 186 (1992), the Disciplinary Commission suspended Coburn for one year for a variety of ethical violations. The violations of AZ-ER 1.4 of which Coburn was found guilty arose out of his handling of one matter, where he: (1) failed to advise his client that her case had been dismissed for lack of prosecution and that a judgment for costs had been rendered against her, (2) failed to advise her that he had refiled the action, and (3) failed to consult with her before making a settlement offer. Similarly, in Matter of Coffey, 171 Ariz. 544, 832 P.2d 197 (1992), the Court agreed with the Disciplinary Commission that Coffey's failure to advise a client that summary judgment had been entered against the client was grounds for the imposition of discipline.

In Matter of Loftus, 171 Ariz. 672, 832 P.2d 689 (1992), the Court approved a recommendation of the Disciplinary Commission that Loftus be suspended for two years and then placed on probation for one year, for ethical violations, including violations of AZ-ER 1.4, arising out of his representation of the administrator of an estate. The violations of AZ-ER 1.4 were based upon (1) his failure to communicate with his client and the other heirs despite repeated inquiries, and (2) misrepresenting his efforts to obtain information concerning the assets of the estate. In Matter of Mulhall, 170 Ariz. 152, 822 P.2d 947 (1992), the Court approved a recommendation of the Disciplinary Commission that Mulhall be disbarred for a variety of ethical violations, including violations of AZ-ER 1.4. The Court pointed out that, in one matter: "[O]n one occasion Respondent violated ER 1.4 (Failure to Communicate) by failing to inform the husband of a debtor's examination at which the husband was required to appear. As a result, the husband was arrested pursuant to a warrant issued at that hearing." Id., 170 Ariz. at 153, 822 P.2d at 948. On another occasion, Mulhall failed to inform his clients of the setting of an arbitration hearing and failed to attend himself. In another instance, Mulhall took on two litigation matters for clients, but failed to appear on their behalf or communicate with them regarding either suit, with the result that default judgments were entered against them.

In Matter of Henry, 168 Ariz. 441, 811 P.2d 1078 (1991), the Court approved a recommendation that Henry be disbarred for a variety of ethical violations, including violations of both AZ-ER 1.3 and 1.4. One of the charges against Henry arose out of a probate matter in which Henry had filed the probate papers, but did nothing further, and then failed to respond to reasonable requests from the client for information. In Matter of Lincoln, 165 Ariz. 233, 798 P.2d 371 (1990), the Court approved a recommendation of the Disciplinary Commission that Lincoln be suspended for nine months for violations of AZ-ER 1.3 and 1.4. With respect to the matter that produced these ethical violations, the Court observed:

The Benders retained Respondent in July 1986 to defend them in a civil lawsuit. After October 1986, he did not contact them, respond to their letters, or return their phone calls. They had to hire another attorney and pay another retainer to resolve the matter that respondent neglected. This was a clear violation of the duties to act with reasonable diligence and promptness in representing a client, ER 1.3, and to keep a client reasonably informed about the status of a matter and comply with reasonable requests for information, ER 1.4 . . .

* * * * * * *

The record further supports the allegation in Count II that respondent failed to notify the Benders that their deposition had been noticed, in violation of ER 1.4.

Id., 165 Ariz. at 235, 798 P.2d at 373.

In Matter of Cardenas, 164 Ariz. 149, 791 P.2d 1032 (1990), the Supreme Court disapproved a recommendation of the Disciplinary Commission that Cardenas be suspended for six (6) months, and instead ordered his disbarment, for violations of AZ-ER 1.1, 1.2, 1.3 and 1.4. With respect to the AZ-ER violations, the Court held that: "[R]espondent not only failed to keep his client informed, as required by ER 1.4, but did not explain the matter to his client so that decisions, vital to his client, could be intelligently made." Id., 164 Ariz. at 151, 791 P.2d at 1034. In addition, the Hearing Committee which had heard the evidence, had found that (1) Cardenas had failed to advise his client of settlement offers or to consult with them before rejecting them, (2) failed to advise the client that his lawsuit had been dismissed for failure to prosecute, and (3) failed to consult with the client before prosecuting an appeal from that dismissal. Similarly, in Matter of Anderson, 163 Ariz. 362, 788 P.2d 95 (1990), the Court agreed with the Disciplinary Commission that Anderson's failure to prosecute a case diligently so that it was dismissed, failing to advise his client of that, and failing to respond to reasonable requests for information, violated both AZ-ER 1.3 and 1.4, and warranted the imposition of a three-month suspension.

Finally, in Matter of Tarletz, 163 Ariz. 548, 789 P.2d 1049 (1990), Tarletz was charged with a number of ethical violations arising out of conduct that occurred both before and after August 2, 1983, the date on which the Arizona Rules of Professional Conduct replaced the former Code of Professional Responsibility. The Disciplinary Commission recommended that Tarletz be disbarred, and the Supreme Court approved that recommendation. With respect to the conduct occurring prior to August 2, 1983, Tarletz was found to have violated DR 6-101, failing to handle a matter competently, by having minimal contact with clients in one matter, failing to advise them of settlement offers, attempting to withdraw without advising her affected clients that she was doing so, and failing to advise clients that she had failed to file an answer and that a default judgment had been entered against them.

The Comment to AZ-ER 1.4 specifically states that: [A] lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person." Id., 7. Correspondingly, in determining whether a lawyer has violated AZ-ER 1.4, whether the lawyer acted intentionally or for some ulterior motive are irrelevant, except to the issue of the nature of the sanction to be imposed. Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994). The issue is simply whether or not the lawyer has kept the client reasonably informed about the status of the matter the lawyer is handling. Id., 179 Ariz. at 62, 876 P.2d at 558.

The duty to keep clients adequately informed of the status and progress of their matters is one of the obligations with which a partner or supervisory lawyer must insure subordinate lawyers comply, by reason of AZ-ER 5.1, and one with which all lawyers must insure their nonlawyer assistants comply, under AZ-ER 5.3. Thus, in Matter of Struthers, 179 Ariz. 216, 877 P.2d 789 (1994), the Court approved a Disciplinary Commission recommendation that Struthers be disbarred. The Hearing Committee in that matter had found that Struthers was guilty of 143 separate ethical violations, 26 of which were violations of AZ-ER 1.4. Significantly, many of the violations of AZ-ER 1.4, the Court pointed out, arose from situations where clients' requests for information went unanswered or neglected by Struthers' staff, a situation for which the Court indicated Struthers was properly held responsible.

Similarly, in Matter of Lenaburg, 177 Ariz. 20, 864 P.2d 1052 (1993), the Disciplinary Commission ordered that Lenaburg be publicly censured for failing to carry out his responsibilities as a managing partner of a firm in four separate matters. In several instances, the Commission found that Lenaburg either participated in, or improperly permitted, violations of AZ-ER 1.4 by failing to insure that associates in the firm were keeping clients adequately advised as to the status of their matters. In some instances, the clients contacted Lenaburg directly and he failed to respond adequately. In Matter of Mybeck, 176 Ariz. 310, 861 P.2d 595 (1993), the Disciplinary Commission found that many of the violations of AZ-ER 1.4 for which Mybeck was disciplined were the result of "sloppy office procedures," but found that to be no excuse.

Finally, in Matter of Galbasini, 163 Ariz. 120, 786 P.2d 971 (1990), the Supreme Court approved a recommendation of the Disciplinary Commission that Galbasini be suspended for a period of six months. The Commission had found Galbasini guilty on three separate counts alleging separate ethical violations. Count Three alleged that he had failed to communicate with his clients for over three months and failed to respond to his clients' repeated attempts to contact him. With respect to this Count, the Court observed:

Respondent failed to communicate with clients because his nonlawyer employees failed to communicate with him. We believe Respondent violated the Rules of Professional Conduct, particularly ER 1.4.

Id., 163 Ariz. at 124, 786 P.2d at 975.

In Arizona Ethics Opinion No. 99-14, the Committee on the Rules of Professional Conduct addressed the issue of what communications a departing lawyer may properly have with clients of the lawyer's former firm. The Committee initially concluded that, where the departing lawyer had had significant personal contact with a client in connection with the provision of legal services to that client by the firm, the lawyer has a mandatory duty, under AZ-ER 1.4. to notify the client of his or her departure. The Committee noted that there might be potential legal issues associated with contacting clients while the departing lawyer was still employed by the firm, but the Committee felt resolution of those issues was outside its jurisdiction. The Committee stressed, however, that there was no ethical prohibition on the departing attorney advising clients of the impending departure while still physically present at the firm.

1.4:300   Duty to Consult with Client

A separate aspect of the ethical requirements concerning communications with clients imposed by AZ-ER 1.4 is that: "[A] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." AZ-ER 1.4(b). The Comment to this portion of the Rule recognizes that the amount of information sufficient to "permit the client to make informed decisions" regarding the conduct of the representation will vary depending on the nature of the engagement and the client's willingness and ability to be involved in those decisions:

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance involved. For example, where there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.

Comment, AZ-ER 1.4, 5.

In the ordinary case, "the information to be provided is that appropriate for a client who is a comprehending and responsible adult." Comment, AZ-ER 1.4, 6. Where that is not the case, as where the client suffers from a disability, the lawyer may need to take special steps to insure that the requirements of AZ-ER 1.4 are satisfied. See AZ-ER 1.14. On the other hand, the Committee on the Rules of Professional Conduct ruled, in Arizona Ethics Opinion No. 86-02, that an attorney appointed by the juvenile court to represent a juvenile defendant on criminal charges is not obligated to discuss legal decisions with, or to provide legal information and materials to, the juvenile's parents.

In Arizona Ethics Opinion No. 97-06, the Committee on the Rules of Professional Conduct ("the Committee") determined that a lawyer representing a client who was considering entering into a cooperation agreement with a law enforcement agency has an ethical obligation to determine all relevant facts that should be weighed in making such a decision, including the availability of protection for the client, and must advise the client candidly of the risks associated with the client's proposed cooperation. In Arizona Ethics Opinion No. 88-02, the Committee considered an inquiry from an attorney pursuing a personal injury claim on behalf of a client who had been asked by a health care provider to execute a lien in favor of the provider against the proceeds of the client's claim. The Committee advised the attorney that the client should be advised that agreement to such a lien was the client's decision, but must also explain to the client any significant limitations upon enforcement of the lien, and the extent to which the client's granting of the lien might affect the client's subsequent rights against the provider.

In Arizona Ethics Opinion No. 87-19, the Committee addressed an inquiry from an attorney who had discovered that conversations in so-called "Quiet Rooms" segregated for private conversations between public defenders and detainees were being monitored by detention staff personnel. The Committee advised the attorney that this fact should be disclosed not only to the Presiding Judge, but also to any former clients whose cases might have been prejudiced by this circumstance. Finally, in Arizona Ethics Opinion No. 87-05, the Committee determined that an attorney could properly advise a client arrested for driving while intoxicated to refuse to undergo blood, urine or breath tests, but that the client must also be fully advised of the consequences of refusing to undergo such tests and be permitted to make his or her own decision whether or not to do so.

Failure to comply with the requirements of AZ-ER 1.4(b) will subject a lawyer to the imposition of discipline. See Matter of Laws-Coats, 172 Ariz. 514, 838 P.2d 1275 (1992); Matter of Cardenas, 164 Ariz. 149, 791 P.2d 1032 (1990). Thus, in Matter of Curtis, 184 Ariz. 256, 908 P.2d 472 (1995), Curtis was charged with failing to handle client matters competently and failing to adequately communicate with clients, in connection with his representation of a client in connection with a dispute arising from a contract between the client and a contractor for the construction of a pool at the client's residence. The contractor went bankrupt, and Curtis looked into the bankruptcy and advised the client that, as the contractor had no assets, there was no point in the client submitting a claim. The client, however, claimed that the scope of Curtis' engagement included seeking to have the bankruptcy stay lifted so that the client could seek relief from the Contractor's Recovery Fund. Curtis denied that such actions were within the scope of his engagement, but the engagement arrangements were ambiguous. Both the Disciplinary Commission and the Court resolved the issue against Curtis, relying at least in part on the fact that Curtis had the opportunity to clear up any misunderstandings and failed to do so. As the Court observed:

Yet, Respondent failed to explain to Client what further information or steps were necessary to pursue the claim against the Fund so that Client could either provide the information or make an informed decision on whether to continue with the claim. Furthermore, Respondent failed to return many of Client's telephone calls because he believed he no longer represented Client. It should have been abundantly clear to him, by the frequency of Client's calls, that Client might not consider the representation terminated. It was therefore incumbent on Respondent to clarify the matter.

Id., 184 Ariz. at 262, 908 P.2d at 478.

In Matter of Kaplan, 179 Ariz. 175, 877 P.2d 874 (1994), one of the grounds for imposing discipline on Kaplan was the fact that, in one matter, he failed to advise his client that he had been unable to locate and serve the defendants, and to consult with them concerning what strategy to pursue in light of that. Similarly, in Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994), Shannon was suspended for a year for a variety of ethical violations, one of which was his failure to permit clients to make decisions concerning the manner in which their matters should be handled.

In Matter of Fioramanti, 176 Ariz. 182, 859 P.2d 1315 (1993), the Court approved a three-year suspension of Fioramanti for a variety of ethical violations, including manufacturing evidence during the bar investigation into his conduct, committing perjury and suborning perjury. Fioramanti was also found to have violated AZ-ER 1.4 in one matter where, at the request of the husband, he undertook representation of both husband and wife, who were going through a divorce, without advising the wife that she was a defendant and that he was going to represent her, and without even talking to her to see if she had any available defenses. In Matter of Ziman, 174 Ariz. 261, 847 P.2d 106 (1993), Ziman was suspended for ninety (90) days for a variety of ethical violations. One of the violations was of AZ-ER 1.4, for entering into a stipulation on behalf of a client in a paternity matter which awarded shared custody, but made no provision for child support, without first consulting with the client.

An attorney who presumes to know what his or her client's desires would be with respect to particular decisions to be made concerning the conduct of a representation acts, to some degree, at the attorney's peril. Thus, in Matter of Wolfram, 174 Ariz. 49, 847 P.2d 94 (1993), the Court approved a recommendation of the Disciplinary Commission that Wolfram be suspended for eighteen (18) months, for not representing a client who was a defendant in a child abuse matter competently and diligently, and for failing to keep that client adequately informed concerning the status and progress of that matter. Wolfram was specifically charged with violating AZ-ER 1.4 for failing to consult with his client about the possibility of requesting a jury instruction on lesser included offenses. Wolfram claimed that he did not need to consult with his client concerning this issue, as she had consistently been adamant that she did not want to go to jail. The Court rejected that argument:

We need not decide exactly what is needed to comport with ER 1.4. It is sufficient to hold that Respondent's inferences based on an implicit agreement fall far short of compliance. A lawyer has an obligation to explain the problem, lay out the significant choices, and help the client make an informed, rational decision. Respondent's failure to consult with his client regarding the possibility of instructing the jury on lesser included offenses demonstrates, clearly and convincingly, that Respondent violated ER 1.4.

Id., 174 Ariz. at 56, 847 P.2d at 101.

1.4:400   Duty to Inform the Client of Settlement Offers

One of the specific items of information that the Comment to AZ-ER 1.4 mentions as a matter that should ordinarily be communicated to a client is offers of settlement:

If these Rules require that a particular decision about the representation be made by the client, paragraph (a)91) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take for example. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer. See ER 1.2(a).

Comment to AZ-ER 1.4, 2. The drafters of the 2003 amendments to the Rules considered the obligation of criminal defense lawyers to communicate plea bargains to clients that they placed in the Rule itself (rather than in the Comment) a new paragraph (c), which requires lawyers to "promptly inform a client of all proffered plea agreements."

In Matter of Varbel, 182 Ariz. 451, 897 P.2d 1337 (1995), The Court approved the suspension of Varbel for two (2) years for various ethical violations arising out of his mishandling of a landlord-tenant dispute. The matter initially resulted, after trial, in a judgment in favor of Varbel's clients in the amount of $86,500, and a judgment against them on a counterclaim for $2,500. One month later, the attorney on the other side made a written settlement offer of $18,000 which Varbel rejected without consulting with his clients. He then turned the entire matter over to an appellate lawyer his clients had hired when the judgments were appealed. The Court of Appeals reversed the judgment in his clients' favor and left the judgment against them intact. The clients then asked Varbel if there had been any settlement offers, and he said there had only been a tentative oral offer for approximately $10,000. The Court found that Varbel had failed to communicate the written settlement offer to his clients, and that constituted a violation of both AZ-ER 1.2 and 1.4.

In Matter of Cardenas, 164 Ariz. 149, 791 P.2d 1032 (1990), the Hearing Committee that heard evidence in the matter found, as one of the proper bases for imposing discipline, that Cardenas had violated AZ-ER 1.4 failing to advise his client of settlement offers and to consult with them before rejecting them. In Matter of Hiser, 168 Ariz. 548, 789 P.2d 1049 (1990), which concerned conduct occurring before the date of the adoption of the Arizona Rules of Professional Conduct, the Court approved a recommendation of the Disciplinary Commission that Hiser be suspended for six months and one day for a variety of ethical violations. On one of the counts brought against Hiser, the Court agreed that Hiser was guilty of neglect in violation of DR 6-101 for failing to notify his client of a settlement offer. In Matter of Tarletz, 163 Ariz. 548, 789 P.2d 1049 (1990), with respect to the conduct of Tarletz that occurred prior to August 1983, the Court agreed with the Disciplinary Commission that she had violated DR 6-101 of the Code of Professional Responsibility by failing to advise clients of settlement offers.

The duty to communicate under AZ-ER 1.4 may extend to other developments or aspects of the settlement process than the receipt of settlement offers. In Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994), the Court agreed that one of the proper grounds for imposing discipline on Shannon was his failure to keep a client informed as to the progress of settlement negotiations. In Matter of Coburn, 171 Ariz. 533, 832 P.2d 186 (1992), one of the grounds for the imposition of discipline was the fact that Coburn had made an offer to settle his client's case without consulting with her in advance.

The Comment suggests that the duty to communicate settlement offers and proffered plea bargains to clients may not be absolute and that it may not be necessary to do so if "prior discussions with the client have left it clear that the proposal will be unacceptable." Comment, AZ-ER 1.4. The lawyer who, in reliance on that observation and prior discussions with clients concerning their desires and objectives, fails to pass along to the client settlement offers that are received, acts to some degree at his or her own peril. See, e.g., Matter of Wolfram, 174 Ariz. 49, 847 P.2d 94 (1993), discussed in Section 1.4:300, supra. The obviously more prudent course of action is to communicate to the client all settlement offers that the lawyer receives, even ones which the lawyer is confident the client will reject.

In Arizona Ethics Opinion No. 03-05, the Committee on the Rules of Professional Conduct ("the Committee") concluded that an attorney for a plaintiff or claimant could not ethically enter into any settlement agreement that would require the attorney to indemnify the settling parties from any lien claims against the settlement proceeds. The principal basis for this conclusion was that AZ-ER 1.8 precludes attorneys from providing financial assistance to a client by paying or advancing medical expenses, and would similarly preclude the attorney from guaranteeing, or accepting ultimate liability for, the payment of such expenses. The Committee went on to note that, while AZ-ER 1.2 generally requires an attorney to abide by a client's decision whether to accept an offer of settlement, a settlement that would require the attorney to hold settling parties harmless violates AZ-ER 1.8, and the attorney cannot agree to such a condition. If the client insists that the attorney do so, then the attorney would be required to withdraw.