skip navigation
search

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.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of Arizona Rule

1.6:101      Model Rule Comparison

The principal change made to this Rule by the 2003 amendments was the expansion of the situations where a lawyer is permitted to reveal information "relating to the representation of a client," which the lawyer must otherwise maintain in confidence. New subparagraphs (1) and (2) of AZ-ER 1.6(d) permit the disclosure of such confidential information (1) to prevent a client from committing a crime or fraud through use of the lawyer's services, and (2) to mitigate or rectify a substantial injury that is reasonably certain to result or has resulted to the financial interests or property of another from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services. This permissive disclosure exception was recommended by the ABA's Ethics 2000 Commission, but has not as yet been adopted as part of the Model Rules.

New or amended subparagraphs were also added to paragraph (d) to permit a lawyer to reveal confidential client information in order to secure ethical advice or to comply with "a final order of a court or tribunal of competent jurisdiction directing the lawyer to disclose such information."

There are significant differences between AZ-ER 1.6 and MR 1.6. Initially, AZ-ER 1.6(a) recognizes exceptions to a lawyer's general duty not to reveal information relating to the representation of a client that are not found in MR 1.6(a). Thus, AZ-ER 1.6(a) provides that a lawyer shall not, without the client's consent, reveal information relating to representation of a client, unless necessary to carry out the objectives of the representation, "and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2)." MR 1.6 does not contain a subparagraph (c) or (d), discussed below, and does not recognize, as the Arizona Rule does, an exception to the general rule of client confidentiality when, under the provisions of AZ-ER 3.3(a)(3), a disclosure of information ordinarily cloaked with confidentiality by AZ-ER 1.6 "is necessary to avoid assisting a criminal or fraudulent act by the client." [See also discussion under Section 3.3:200, infra.]

AZ-ER 1.6(b) is similar to MR 1.6(b)(1), but contains some significant differences. Initially, AZ-ER 1.6(b) contemplates disclosure of client confidences to the extent the lawyer reasonably believes is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death [or substantial bodily harm] - the reasonably foreseen death need not be "imminent," as MR 1.6(b)(1) requires. Far more importantly, where the catalysts for disclosure defined in AZ-ER 1.6(b) are present, disclosure by the lawyer of otherwise protected information is mandatory, rather than discretionary as under MR 1.6(b)(1).

MR 1.6 has no counterpart to AZ-ER 1.6(c), which permits (but does not require) a lawyer to reveal the intention of a client to commit a crime and the information necessary to prevent that crime.

AZ-ER 1.6(d)(1) and (2), both added by the 2003 amendment, are now contained in the Model Rule as MR 1.6(b)(2) and (3), as a consequence of amendments approved by the ABA House of Delegates in August 2003. AZ-ER 1.6(d)(3) and (4) are substantially identical to MR 1.6(b)(2) and (3). AZ-ER 1.6(d)(5) is substantively the same as MR 1.6(b)(4), but uses the phrase "final order of a court or tribunal of competent jurisdiction directing the lawyer to disclose such information." rather than the Model Rule's "court order."

The differences between AZ-ER 1.6 and MR 1.6 are carried forward in the Comments. Thus, the Comment to MR 1.6 does not contain paragraphs similar to paragraphs 6, 7, and 8, of the Comment to AZ-ER 1.6, because they explain provisions not contained in the Model Rule. In addition, paragraph 2 of the Comment to AZ-ER 1.6 contains the sentence "The public is better protected if full and open communication by the client is encouraged than if it is inhibited." which does not appear in that paragraph of the Comment to MR. Finally, paragraph 18 of the Comment to AZ-ER 1.6 is virtually identical to paragraph 14 of MR 1.6, but does not contain the last two sentences concerning organizational clients.

1.6:102      Model Code Comparison

As noted in the Comment that accompanies AZ-ER 1.6: "The principle of confidentiality is enlarged in several respects and narrowed in a few respects compared with the corresponding provisions of the Code." Initially, AZ-ER 1.6 defines the information that is protected as "information relating to representation of a client," a broad definition which replaces the somewhat ambiguous terminology of the "confidences" and "secrets" of the client, which was employed in the DRs which AZ-ER 1.6 replaced. Under the DRs in the former Code, "confidences" included all matters protected by the attorney-client privilege (including the "work product" doctrine). "Secrets" encompassed a broader range of information than "confidences," and included any information gained in the professional relationship that the client had requested be kept inviolate or the disclosure of which would have been embarrassing, or was likely to be detrimental, to the client. Although DR 4-101 created these as supposedly different categories, the confidentiality rules in DR 4-101 treated them identically.

The expansion by AZ-ER 1.6 of the scope of information required to be kept confidential, subject to the exceptions stated in the Rule, relieves the client of the burden of having to specify what information is to be protected, and relieves the lawyer of the burden of speculating whether disclosure of particular information might be embarrassing or detrimental to the client. In addition, AZ-ER 1.6 imposes confidentiality on information relating to representation of a client, even if it is acquired before or after the relationship existed. Comment to AZ-ER 1.6.

Under AZ-ER 1.6(a), a lawyer is permitted to disclose information where that is impliedly authorized to carry out the objectives of the representation. Former DR 4-101(B) and (C) prevented a lawyer from disclosing "confidences" without the express consent of the client after disclosure.

AZ-ER 1.6(b) through (d) redefine the exceptions to the confidentiality requirement. Under paragraph (b), a lawyer is required to reveal information to the extent believed necessary to prevent a client from committing a crime that is likely to result in death or substantial bodily harm. [As noted earlier, the mandatory nature of this disclosure differs from the corresponding provisions in the Model Rules.] Paragraph (c) preserves the Code provision, DR 4-101(C)(3), that a lawyer is permitted (but not necessarily required) to reveal the intention of a client to commit a crime and the information necessary to prevent it, regardless of the seriousness of the crime involved.

Under DR 7-102(B), as originally promulgated, a lawyer was required to reveal information necessary to "rectify" a "fraud upon a person or tribunal." That DR applied to past frauds and presumably future frauds, if the client proceeded to commit them. DR 7-102(B) was amended in 1974 by the ABA to provide that such disclosure was not permitted "when the information is protected as a privileged communication." This amended version was adopted in several states, including Arizona. AZ-ER 1.6(a) now reverses that position, and exempts from the confidentiality requirement disclosures required to satisfy the lawyer's obligations under AZ-ER 3.3(a)(2), to disclose "a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client."

DR 4-101(C)(4) permitted a lawyer to reveal "confidences or secrets necessary to establish or collect his fee or to defend himself or his employers or associates against an accusation of wrongful conduct." AZ-ER 1.6(d) enlarges that exception to include disclosure of information relating to claims by the lawyer other than for collection of the lawyer's fee, but narrows the exception dealing with the defense of claims of wrongful conduct to situations where the client's conduct was involved.

1.6:200   Professional Duty of Confidentiality

  • Primary Arizona References: AZ-ER 1.6 and accompanying Comment
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary: 1 G. Hazard & W. Hodes, The Law of Lawyering §§1.6:105, 1.6:401-402; T. Morgan and R. Rotunda, Problems and Materials on Professional Responsibility 243-256 (5th ed. 1991)

The duty of confidentiality, which is broader than the attorney-client privilege, is one of the primary duties that a lawyer owes to the lawyer's client. The duty of confidentiality is premised on the need for full disclosure between an attorney and client in order to facilitate effective representation. If it were not generally known that lawyers are required to preserve client confidences, persons with legal problems would be reluctant to seek legal assistance and confide in lawyers. Comment to AZ-ER 1.6. It is also based on protecting the client's legitimate expectations of privacy. The duty is not only an end in itself, but is related to other primary duties, particularly the duty of loyalty. The Arizona courts have recognized that the ethical prohibition on the disclosure of confidential information "protects the client from a variety of harms and protects the attorney-client relationship." Okeani v. Superior Court In and For County of Maricopa, 178 Ariz. 180, 181, 727 P.2d 727, 728 (App. 1993).

Confidentiality considerations have a direct and significant impact on the application of the conflict of interest rules. It has in fact been held that, where counsel avows to a tribunal that counsel has an ethical conflict of interest that, in counsel's judgment, necessitates withdrawal, the trial court should not require counsel to disclose information protected by AZ-ER 1.6 as a condition of permitting such withdrawal. Maricopa County Public Defender's Office v. Superior Court In and For County of Maricopa, 187 Ariz. 162, 927 P.2d 822 (App. 1996). The duty to keep in confidence information relating to the representation of a client applies not only to counsel, but to those who work with, or under the supervision of, counsel as well. It has been held that a lawyer's duty to supervise, and be responsible for, the conduct of nonlawyer assistants under AZ-ER 5.3 encompasses the protection of client confidences that are communicated to such assistants, and that a lawyer or law firm may properly be disqualified on the basis of a nonlawyer assistant's conduct that would violate the ethical rules that protect a client's confidential communications to a lawyer. Smart Industries Corp., Mfg. v. Superior Court In and For County of Yuma, 179 Ariz. 141, 876 P.2d 1176 (App. 1994).

In Arizona Ethics Opinion No. 2000-06, the Committee on the Rules of Professional Conduct held that, where a lawyer is appointed by the Juvenile Court to serve as the guardian ad litem for a juvenile, but separate counsel has been appointed to serve as the juvenile's attorney, then no attorney-client relationship is formed between the juvenile and the lawyer appointed as guardian, and that lawyer is not bound by this Rule's duty of confidentiality.

In Arizona Ethics Opinion No. 2001-02, the Committee held that, notwithstanding ER 1.6, an attorney may disclose to the authorities information concerning the 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 disclosure is permissive, not mandatory, and the Committee declined to address whether the attorney-client privilege would operate to preclude the attorney from making the disclosure.

In Arizona Ethics Opinion No. 02-04, the Committee ruled that, under the facts presented, an attorney who received an unsolicited e-mail message concerning legal services did not owe a duty of confidentiality to the sender. The sender was a disgruntled employee of a corporation who, through research on the Internet, located the names and e-mail addresses of 11 lawyers who practiced employment law, and sent to each of them, including the inquiring attorney, a message stating an intention to sue the employer and attaching correspondence with that employer. Unfortunately, the corporate employer involved was a client of the inquiring attorney, who wanted to know whether the message and the attachment could be shared with the client involved. The Committee concluded that they could be shared with the client because, under the particular circumstances presented, the sender of the message did not have a reasonable expectation of confidentiality with respect to the communication.

The Committee cautioned, however, that there may be circumstances where a lawyer does owe a duty of confidentiality with respect to information communicated by prospective clients. (Since the issuance of this Opinion, Arizona has adopted a new Rule, AZ-ER 1.18, dealing with obligations to prospective clients, which is discussed at Section 1.18, infra.) That duty was not implicated in that case, because of the number of lawyers to whom the message was transmitted. The Committee warned, however, that such an expectation of confidentiality, and corresponding duty to honor it, might arise where a lawyer or law firm maintains an Internet Web site which does not contain express limitations concerning the formation of attorney-client relationships, or disclaimers specifying that information transmitted through the site will not be kept confidential.

In Arizona Ethics Opinion No. 02-06, the Committee addressed the question as to how a lawyer should structure the relationship when engaged by individuals to form a corporation or other legal entity in which the individuals would be constituents once formed. The Committee said the relationship could be structured in one of two alternative ways. The first was to make the client the yet-to-be-formed entity, provided the incorporators understand and agree that the future entity is the client and that, once the entity if formed, they would have to ratify this action on behalf of the entity. The Committee stressed that, if the engagement is structured in this way, this should be made clear at the initial meeting, in the engagement letter, and periodically thereafter. The forming constituents must also be advised that they are not the lawyer's clients, and of the consequences of that for the confidentiality of information they provide to the lawyer.

The second alternative structure is to represent jointly the incorporators in forming the entity. In that case, the joint clients must be advised of the consequences of such joint representation for the confidentiality of information, and also of the possible obligation of the lawyer to withdraw if a conflict between the joint client arises. Finally, once the entity is formed, the clients must determine whether the lawyer will represent just the entity, just the constituents, or both, provided there is no conflict of interest presented by any of those alternatives.

1.6:210      Definition of Protected Information

AZ-ER 1.6 is the primary substantive basis for the lawyer's duty of confidentiality, and it broadly proscribes the disclosure of any "information relating to representation" of a client unless the client consents or impliedly authorizes disclosure. While Rule 41(f), Rules of the Supreme Court specifies, as one of the duties and obligations of members of the State Bar of Arizona, the duty "to maintain inviolate the confidences and preserve the secrets of a client," it should be construed as consistent with AZ-ER 1.6, which was adopted later in time, rather than as limiting the scope of information subject to the confidentiality requirement. Thus, absent the permission of the client, and unless one of the exceptions stated in the Rule applies, a lawyer may not reveal confidential information nor use it to the disadvantage of the client. See Lake Havasu Community Hospital, Inc. v. Arizona Title Insurance and Trust Co., 141 Ariz. 363, 687 P.2d 371 (App. 1984) (lawyer retained by insurance company to defend insured cannot reveal to insurance company information learned from client or during course of engagement that might prejudice insured's right to insurance coverage).

The client does not have to indicate which information is to be confidential, nor may the lawyer speculate. All information is presumptively confidential unless the client does not treat the information as such. See Comment to AZ-ER 1.6; Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984). The obligation of confidentiality applies in every situation, and not solely in testimonial and discovery proceedings, as is the case with the attorney-client privilege. Information relating to the representation is protected by AZ-ER 1.6 without regard to its nature or source, or the fact that others share the knowledge. Thus, in Arizona Ethics Opinion No. 97-05, the Committee on the Rules of Professional Responsibility (the "Committee") held that the presence of a third person, such as in interpreter, parent or advocate, while it might impact on the applicability of the attorney-client privilege, did not affect the lawyer's duty of confidentiality under AZ-ER 1.6.

The duty of non-disclosure covers the periods prior to and subsequent to the creation of the attorney-client relationship as well as during the duration of the relationship. See State ex rel. Hyder v. Superior Court of Maricopa County, 128 Ariz. 253, 625 P.2d 316 (1981). A lawyer must protect confidential information given by a potential client even if he or she is not eventually retained to represent that person. See In re Petrie, 154 Ariz. 295, 742 P.2d 796 (1987). Similarly, after the employment terminates, the lawyer must hold in confidence information relating to the terminated representation. See Comment to AZ-ER 1.6. The determination of whether an attorney-client relationship exists for purposes of determining whether a duty of confidentiality applies focuses on the client's subjective belief, based on the nature of the work performed, the circumstances under which information was divulged, and whether the client thought an attorney-client relationship existed that carried with it a duty of confidentiality. Alexander v. Superior Court In and For Maricopa County, 141 Ariz. 157, 685 P.2d 1309 (1984).

Virtually any kind of information offered to a lawyer may be confidential, including communications concerning past crimes that the client has committed, see Comment to AZ-ER 1.6; Rodriguez v. State, 129 Ariz. 67, 628 P.2d 950 (1981); communications concerning future business decisions such as business acquisitions or purchases of real estate, see In re Spear, 160 Ariz. 545, 774 P.2d 1335 (1989); and certainly matters related to a claim against the client.

The attorney-client privilege is both narrower and more limited than AZ-ER 1.6. It is narrower in that the privilege only protects communications between an attorney and a client or other privileged person that were made in confidence for the purpose of obtaining or providing legal assistance, while the Rule extends to the broader category of "information relating to the representation." State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979); Butler v. Doyle, 112 Ariz. 522, 544 P.2d 204 (1975). The privilege is more limited in the sense that it is a defense to attempts to compel the disclosure of protected communications, whereas the main focus of AZ-ER 1.6 is voluntary disclosure. Finally, the attorney-client privilege may be waived, and is subject to several exceptions which do not apply to the duty of confidentiality imposed by the Rule.

In general, the client's identity, the fact of consultation with counsel, fee arrangements, and similar matters are matters relating to the representation of a client which are to remain confidential under AZ-ER 1.6. Such matters, however, are normally found to be outside the scope of the attorney-client privilege and a lawyer may be compelled to disclose them. In most instances, a lawyer must disclose the name of the client. Dunipace v. Martin, 73 Ariz. 415, 242 P.2d 543 (1952). A lawyer should attempt, however, whenever possible, to protect the identity of the client when the lawyer believes that the client would be harmed or embarrassed by disclosure or wishes to remain unidentified. In limited circumstances, the identity of the client may be protected when disclosure of the client's name would be the "last link" in establishing a claim or defense against the client. See Baird v. United States, 279 F.2d 623 (9th Cir. 1960). In such circumstances, the identity of the client may be privileged and, in any event, the lawyer should assert the privilege until legally compelled to disclose the client's name. See 1 G. Hazard & W. Hodes, The Law of Lawyering §§ 1.6:105 (2d ed. 1990).

Similarly, the fact of representation is confidential under AZ-ER 1.6, but usually found to be outside the scope of the attorney-client privilege. State v. Adamson, 136 Ariz. 250, 665 P.2d 972 (1983), cert. denied, 464 U.S. 865 (1983). Preliminary places and means of consultation between the attorney and the client are confidential, but generally fall outside the scope of the attorney-client privilege. Id.

Fee arrangements between the lawyer and the client, and the amount of the fee paid by the client, are confidential under the Rule, but are also generally held to be outside the scope of the attorney-client privilege. A related problem arises concerning identifying the source of attorneys fees in criminal cases. Under certain circumstances, a lawyer may be forced to disclose whether fees were paid by a third party. Additionally, federal law requires a lawyer to report a cash fee in excess of $10,000, or a series of cash payments which exceed $10,000 in related transactions. The identity of the source of the payment, as well as the source's taxpayer identification number, must be reported. Failure to report is a criminal offense. In Arizona Ethics Opinion No. 87-03, the Committee confirmed that an attorney must file the form required by Section 60501 of the Internal Revenue Code after receiving a cash payment in excess of $10,000 while defending a client against a charge of federal income tax evasion.

Finally, issues concerning the lawyer's receipt and disposition of the fruits and instrumentalities of a crime are sensitive and difficult to resolve. While an attorney may not breach any confidentiality that may pertain to the attorney's receipt of such materials, and may not undermine the client's privilege against self-incrimination, the attorney may be required to turn over fruits and instrumentalities of the client's crime, or information regarding them, to law enforcement officials if it can be done in a way that does not link them to the client. See T. Morgan and R. Rotunda, Problems and Materials on Professional Responsibility 243-256 (5th ed. 1991); 1 G. Hazard & W. Hodes, The Law of Lawyering, §§ 1.6:401-402 (2d ed. 1990). In Hitch v. Pima County Superior Court, 146 Ariz. 588, 708 P.2d 72 (1985), the Court addressed the obligations of a criminal defense attorney who receives from a third party physical evidence that inculpates the attorney's client. If the attorney reasonably believes that the evidence will not be destroyed, the attorney may return the evidence to its source with an explanation of the law regarding concealment and destruction of material evidence. If, however, the attorney has reasonable grounds to believe that the evidence might be destroyed if returned to its source, or if the attorney's client consents, the attorney may turn the evidence over to the prosecution. See also the discussion in Sections 3.4:210 and 3.4:300.

Finally, issues concerning the lawyer's receipt and disposition of the fruits and instrumentalities of a crime are sensitive and difficult to resolve. While an attorney may not breach any confidentiality that may pertain to the attorney's receipt of such materials, and may not undermine the client's privilege against self-incrimination, the attorney may be required to turn over fruits and instrumentalities of the client's crime, or information regarding them, to law enforcement officials if it can be done in a way that does not link them to the client. See T. Morgan and R. Rotunda, Problems and Materials on Professional Responsibility 243-256 (5th ed. 1991); 1 G. Hazard & W. Hodes, The Law of Lawyering, §§ 1.6:401-402 (2d ed. 1990). In Hitch v. Pima County Superior Court, 146 Ariz. 588, 708 P.2d 72 (1985), the Court addressed the obligations of a criminal defense attorney who receives from a third party physical evidence that inculpates the attorney's client. If the attorney reasonably believes that the evidence will not be destroyed, the attorney may return the evidence to its source with an explanation of the law regarding concealment and destruction of material evidence. If, however, the attorney has reasonable grounds to believe that the evidence might be destroyed if returned to its source, or if the attorney's client consents, the attorney may turn the evidence over to the prosecution. See also the discussion at Sections 3.4:210 and 3.4:300.

In Arizona Ethics Opinion No. 2001-13, the Committee on the Rules of Professional Conduct held that prosecutors may ethically reveal the substance of their discussions with law enforcement witnesses, as such discussions are not considered client confidences. In fact, if the discussions reveal information tending to negate the guilt of the accused or to mitigate the offense, prosecutors have an obligation to disclose it, under AZ-ER 3.8.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

AZ-ER 1.6(a) promulgates a general and mandatory prohibition on the disclosure by a lawyer of "information relating to representation of a client unless the client gives informed consent," subject to the exceptions stated in that and other paragraphs of the Rule. Thus, an attorney may not reveal to a workers' compensation insurer, without the client's fully informed consent, the fact that the client's monthly compensation checks are in excessive amounts. Arizona Ethics Opinion No. 91-02. Even if the client's conduct in accepting and negotiating the checks constitutes a crime, it is not a future crime and may not be disclosed under the exception stated in AZ-ER 1.6(c). Id.

In Arizona Ethics Opinion No. 2000-11, the Committee on the Rules of Professional Conduct addressed the issue of the obligation of a lawyer subpoenaed to testify in proceedings which might involve information relating to representation of clients of the lawyer. The Committee said that, obviously, if the attorney is asked to testify about communications with clients, the attorney must invoke the attorney-client privilege. The Committee noted, however, that a lawyer acquires a great deal of information "relating to the representation" of a client by means other than attorney-client communications, and that information is encompassed within the duty of confidentiality as well. The Committee concluded that, if a subpoenaed lawyer is asked to reveal such matters, the lawyer must refuse to disclose them on the grounds of client confidentiality, unless and until the lawyer is compelled to testify by a "final order" of a tribunal of competent jurisdiction.

An attorney may not ethically enter into a settlement agreement which requires the attorney to supply to the opposing attorneys a list of their corporate client's franchisees that the attorney has contacted concerning potential legal action against either the corporate entity or any of the other parties named in the settlement. Arizona Ethics Opinion No. 90-06. Arizona Ethics Opinion No. 88-08 addressed the situation of an attorney representing the wife in a domestic relations matter who had surreptitiously tape recorded a conversation between her husband and his attorney. The wife had disclosed to her attorney that the tape revealed that opposing counsel had advised the husband to dispose of a substantial amount of money received as a bonus. The Committee advised that the wife's attorney could not make use of this or any other information contained in the recording, and could not disclose that fact and circumstances of the recording to opposing counsel.

In order to preserve the confidentiality of client communications, an attorney who discovered that conversations held in so-called "Quiet Rooms," which are segregated for private conversations between public defenders and detainees, were being monitored by detention staff personnel was obligated to disclose the situation to the Presiding Judge and to hold no further client conferences in a "Quiet Room" until the monitoring is terminated. Arizona Ethics Opinion No. 87-19. An attorney who has been appointed by the Juvenile Court to represent a juvenile defendant on criminal charges is not obligated to discuss legal decisions or to provide legal information and materials to the juvenile's parents. Arizona Ethics Opinion No. 86-02. A lawyer may refrain from or delay reporting the misconduct of the client's former lawyer, at the request of the client, when the underlying information upon which the complaint would be based was disclosed to the new attorney during the course of representation and is, therefore, protected by AZ-ER 1.6. Arizona Ethics Opinion No. 94-12. Since no exception to the general rule of confidentiality applies in that circumstance, AZ-ER 1.6 trumps AZ-ER 8.3 and the facts cannot be disclosed. Id.

The duty may extend to confidences imparted to another lawyer by that lawyer's client. In Arizona Ethics Opinion No. 2001-04, the Committee addressed the obligations of a lawyer in a civil case who receives from a client documents that contain privileged or otherwise confidential information which the client has obtained from an employee of an adverse party. The Committee endorsed the views of ABA Formal opinion No. 94-382, and held that the lawyer must refrain from examining the materials or making use of them, notify (with the client's consent) opposing counsel of the receipt of them, and either abide by opposing counsel's instructions as to their disposition or seek a ruling from the court. If the client refuses to consent to notifying opposing counsel, the lawyer may not do so but must still refrain from examining or using the materials and, if the lawyer does so, the lawyer is not required to withdraw. If there is evidence that the client has some complicity in obtaining the materials, and intends to continue to do so, the lawyer must counsel the client about the legal consequences of that and tell the client to discontinue. If the client refuses to do so, then the lawyer may, but is not required to, advise the adversary or the authorities. The lawyer must also decline to accept any further documents of a similar nature obtained by the client.

The duty of confidentiality survives the termination of the attorney-client relationship. Thus, a lawyer who possesses documents belonging to a client whose location is unknown is ethically prohibited from transferring that property to the client's adversary or to the adversary's lawyer. Arizona Ethics Opinion No. 91-01. Similarly, an attorney may not divulge a former client's name and address to parties who have potential claims against the client even though the attorney-client relationship has ceased. Arizona Ethics Opinion No. 87-22.

In Arizona, AZ-ER 1.6(a) makes the duty of confidentiality expressly subject to the lawyer's obligations under AZ-ER 3.3(a)(3) to disclose "a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the tribunal." This language has generally been understood as making the duty to protect client confidentiality subject to the lawyer's duty of candor with a tribunal. Thus, while an attorney who is asked by a court about the availability of the client for trial must maintain the confidentiality of all information relating to the representation, but may disclose the intention of the client not to appear if: (1) the attorney has actual knowledge that the client will not appear, and (2) the act of the client is willful and not the result of mistake or inadvertence. Arizona Ethics Opinion No. 95-02.

In Arizona Ethics Opinion No. 2001-14, on the other hand, the Committee concluded that a lawyer handling a pending criminal appeal who discovers that the client used a false name in the trial court must advise the client that a false name cannot be used on appeal. If the client insists on using a false name, the lawyer should seek to withdraw, but not reveal the client's use of a false name. If the motion to withdraw is denied, the lawyer must proceed but cannot rely upon or argue the client's false identity in any further representation.

Similarly, a public defender may ethically disclose information requested on an initial status report to the Court concerning meetings with the defendant, the production of discovery, and the review of plea offers. Arizona Ethics Opinion No. 98-01. On the other hand, in the situation where a lawyer previously represented a court appointed mental health professional expert witness in an unrelated matter, the lawyer is not required to disclose the prior representation unless there is some showing that the former relationship will predispose the expert to favor the position of the expert's former attorney, and the lawyer need not withdraw from the present representation unless there is some unusual bias on the expert's part or the lawyer will be restricted in conducting cross-examination of the expert due to the prior representation. Arizona Ethics Opinion No. 94-13.

In Arizona Ethics Opinion No. 2000-02, the Committee on the Rules of Professional Conduct ("the Committee") addressed three different factual scenarios arising in the sentencing context where the lawyer's duty of confidentiality might come into conflict with a lawyer's duty of candor to the court. At the outset of its discussion, the Committee noted that a criminal defense lawyer's duty of candor and disclosure may be overridden by constitutional protections to which the client is entitled. On the other hand, while there is that inherent tension between complying with ethical obligations and diligently representing a criminal defendant, that defendant has no right to the affirmative assistance of counsel in offering false testimony.

The first scenario involved a client charged with DUI who is presented with a plea agreement that requires the client to sign a statement that the client has not been convicted of DUI during the past five years. In an office conference, the client has advised the attorney that he does have a prior DUI conviction within the preceding five years that the State has not alleged. The Committee concluded that the lawyer could not sign a statement concurring in the plea agreement which the lawyer knows contains a material misrepresentation, but could simply cross out the language concerning prior convictions.

The second scenario involved the same predicate facts, except that the client does not desire to take the plea offer but wants to plead guilty directly to the judge. The Committee advised that, if the judge asked no questions concerning prior convictions, then no problem was presented. If the judge does ask such a question of the lawyer, the lawyer may only say that no prior convictions are alleged. If the judge asks the question of the client, and the client says he has no prior DUI convictions, the lawyer has no obligation to correct the misstatement, because the true facts were learned in confidence. The Committee analogized this scenario to allowing the client to testify in narrative form.

The third, and final, scenario involved the same facts, except that the client denied to the lawyer having any prior DUI convictions, but the lawyer's office records reflected that the client was represented on a DUI, and convicted, less than five years ago. The Committee again advised that the lawyer cannot sign a statement concurring in a plea agreement that contains a material misrepresentation, but that if the judge asks the client about prior convictions, and the client denies any, the lawyer has no obligation reveal the client's misstatement.

Opinions of the Committee on the Rules of Professional Conduct and of the Arizona courts make clear that lawyers must be sensitive to, and take into account, the duty to maintain confidentiality in structuring, conducting and financing their law practices. Thus, in Smart Industries Corp., Mfg. v. Superior Court In and For Count of Yuma, 179 Ariz. 141, 876 P.2d 1176 (App. 1994), the Court held that the duty to keep in confidence information relating to representation of a client applies not only to counsel, but also to those who work with, or under the supervision of, counsel as well. The Court went on to explain that a lawyer's duty to supervise, and be responsible for, the conduct of nonlawyer assistants under AZ-ER 5.3 encompasses the protection of client confidences that are communicated or made available to such assistants, and that a lawyer or law firm may properly be disqualified on the basis of a nonlawyer assistant's conduct that would violate the provisions of AZ-ER 1.6.

In Arizona Ethics Opinion No. 98-08, the Committee held that an attorney could ethically enter into a contract with an independent paralegal to assist in the conduct of initial client interviews, provided: (1) the attorney supervises and controls the paralegal's activities to insure that the paralegal does not engage in the unauthorized practice of law, (2) there is no sharing of fees with the paralegal, (3) the initial interviews conducted by the paralegal are only with existing clients, and (4) there is no solicitation of new business by the paralegal. Similarly, in Arizona Ethics Opinion No. 87-24, the Committee cautioned that an attorney who lists another firm or attorney as "Of Counsel" on letterhead and other communications should take into consideration the possibility that conflicts of interest and confidentiality problems might arise.

In Arizona Ethics Opinion No. 97-08, the Committee addressed the situation of a lawyer who was both an attorney and a certified public accountant. The Committee held that the inquiring individual could list both professional titles on stationery used in the law practice, but: (1) the businesses must remain separate financially and for advertising purposes even though they may "reside" in the same physical location, (2) the non-legal business must not be used as a "feeder" for the law firm (i.e., clients of the non-legal business should not be solicited for legal work), (3) clients who are referred to the non-legal business must be advised of the lawyer's interest in the accounting firm and that the attorney-client privilege does not extend to the accounting work performed for the client, and (4) appropriate safeguards must be in place to assure against breaches of confidentiality and conflicts for the law practice.

In Arizona Ethics Opinion No. 95-11, the Committee addressed the increasingly frequent practice of conducting attorney-client conversations over portable or cellular telephones. The Committee held that such a practice will not necessarily violate AZ-ER 1.6, but lawyers doing so should advise clients of the potential risk of interception and use caution in discussing confidential matters over such types of instruments. In Arizona Ethics Opinion No. 97-04, the Committee adopted essentially the same rule for using e-mail sent over the Internet as a means for communicating with clients - clients should be advised of the possible risks of interception and caution, and perhaps encryption technology, should be used where particularly sensitive matters are being discussed.

Measures taken to finance a law practice have presented difficult issues with regard to the duty of confidentiality. In Arizona Ethics Opinion No. 94-11, the Committee ruled that an attorney must have the prior consent of a client before disclosing client confidences to a credit reporting agency or a collection agency that uses a credit reporting agency. In Arizona Ethics Opinion No. 89-10, the Committee held that an attorney who has accepted a credit card for payment of legal fees may not disclose confidential communications between the attorney and the client to the lender. In Arizona Ethics Opinion No. 92-04, the Committee ruled that a law firm may not furnish to a bank a list of accounts receivable that identifies the names of clients and the amounts they owe the firm, without the informed consent of the clients involved. Finally, in Arizona Ethics Opinion No. 98-05, the Committee held that a law firm may not sell its accounts receivable to a factor because: (1) it will require the disclosure of confidential information beyond that authorized by AZ-ER 1.6(d), and (2) it would involve the sharing of legal fees with a non-lawyer. A lawyer or law firm may not sell accounts receivable to a factor if the factor is authorized to resell the accounts to anyone, or if the agreement would permit the factor to receive correspondence from the law firm's clients that may contain confidential information.

In Arizona Ethics Opinion No. 99-08, the Committee held that insurance defense lawyers could not participate in an audit review program conducted by an insurance company's outside auditor where the program requires (1) the disclosure of confidential information about the client/insured (without the client's informed consent), (2) restricts the lawyer's independent professional judgment by limiting the services the lawyer may perform, and (3) grants the auditor permission to review client files. The Committee stressed that, when an insurer engages a lawyer to defend an insured, the insured is the lawyer's client to whom the lawyer owes a duty of undeviating allegiance and loyalty. The lawyer is prohibited from revealing, without the client/insured's consent, information relating to the representation, and the disclosures which would occur during the course of an audit of the attorney's client files cannot be justified as being impliedly authorized to carry out the objectives of the representation. The Committee also cautioned insurance defense practitioners to be careful in submitting bills to carriers not to make unnecessary disclosures of information relating to the representation, and not to disclose at all information which could prove detrimental to the insured/client.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

AZ-ER 1.8(b) provides explicitly that, absent the fully informed consent of the client after consultation, a lawyer may not use information relating to the representation of a client to that client's disadvantage. In Matter of Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997), the Court upheld the imposition of discipline on an associate in a firm who was an investor in commercial ventures in which other lawyers in the firm represented other investors and who apparently used information acquired by the firm from the other investors to his own advantage. The Court concluded that the lawyer-investor had breached both AZ-ER 1.6 and AZ-ER 1.8(b). Similarly, in In re Spear, 160 Ariz. 545, 774 P.2d 1335 (1989), the Court held that a lawyer may not use information protected by AZ-ER 1.6 to structure a land transaction in a fashion that advanced the lawyer's interests to the detriment of the client's.

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

There are no Arizona authorities that specifically address this issue. Where a lawyer undertakes the representation of multiple parties in a transaction or in litigation, and no disqualifying conflict of interest precludes that or the clients grant their fully informed consent, it would be prudent to establish at the outset an understanding with the clients involved concerning the impact of the joint representation on the confidentiality requirements of AZ-ER 1.6.

In the situation where a lawyer undertakes joint representation of multiple clients with respect to a matter (assuming such joint representation is permissible under the Rules concerning conflicts of interest), communications with the lawyer will not be privileged as between the joint clients, but will be as against third parties. Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984); Hellyer v. Hellyer, 129 Ariz. 453, 632 P.2d 263 (App. 1981); Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (App. 1981); Nichols v. Elkins, 2 Ariz.App. 272, 408 P.2d 34 (App. 1965).

1.6:250      Information Imparted in Lawyer Counseling Programs

There are no Arizona authorities that specifically address this issue. AZ-ER 8.3(c) was amended, effective January 22, 2002, to provide that the Rule mandating the reporting, under certain circumstances, of professional misconduct does not require disclosure of information gained by a lawyer while participating in an approved lawyers' assistance program.

1.6:260      Information Learned Prior to Becoming a Lawyer

As a general rule, the lawyer's duty of confidentiality under AZ-ER 1.6 covers the periods prior to and subsequent to the creation of the attorney-client relationship as well as during the duration of the relationship. See State ex rel. Hyder v. Superior Court of Maricopa County, 128 Ariz. 253, 625 P.2d 316 (1981) and In re Petrie, 154 Ariz. 295, 742 P.2d 796 (1987). There are no Arizona authorities, however, that specifically address the issue whether AZ-ER 1.6 applies to information concerning a subsequent client that the lawyer learned prior to becoming a lawyer.

1.6:300   Exceptions to Duty of Confidentiality--In General

AZ-ER 1.6 itself recognizes several exceptions to the general rule that a lawyer may not reveal information relating to the representation of a client. Initially, AZ-ER 1.6(a) expressly permits a lawyer to reveal such information, without the client's consent, where necessary to carry out the objectives of the representation. That subpart of the Rule also makes the lawyer's duty of confidentiality expressly subject to the lawyer's obligation of candor toward tribunals under AZ-ER 3.3(a)(2). [See discussion under Sections 1.6:101, supra, and 3.3:200, infra.]

AZ-ER 1.6(b) makes it mandatory for a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm. AZ-ER 1.6(c) permits (but does not require) a lawyer to reveal the intention of a client to commit a crime and the information necessary to prevent that crime. Finally, AZ-ER 1.6(d) permits the lawyer to reveal information relating to the representation of a client " to the extent the lawyer reasonably believes necessary" (1) to prevent the client from committing a crime or fraud reasonably certain to result in substantial financial injury to another through the use of the lawyer's services, (2) to mitigate or rectify financial injury that is likely to occur, or has already occurred, from such a crime or fraud, (3) to secure ethical advice, (4) "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.", or (5) to comply with other law or a final order of a court or tribunal of competent jurisdiction.

1.6:310      Disclosure to Advance Client Interests or with Client Consent

AZ-ER 1.6(a) expressly permits the disclosure of information relating to the representation of a client where "the client consents after consultation." Disclosure of such information is also permitted where it is "impliedly authorized in order to carry out the representation." Common instances where disclosure would be authorized by necessary implication would include information imparted to the attorney for use in the preparation of pleadings that are to be filed, in dealing with other persons, or to be disclosed or otherwise used in representing a client before a government agency. See also Comment to AZ-ER 1.6. In Arizona Ethics Opinion No. 90-12, the Committee on the Rules of Professional Conduct, relying heavily on the provisions of AZ-ER 1.14(b), ruled that, if a lawyer reasonably believes that a client cannot adequately act in the client's own best interests, the lawyer may disclose confidential information to the extent necessary for an independent diagnostician to make an assessment of the client's disability. Similarly, in Arizona Ethics Opinion No. 91-18, the Committee concluded that a lawyer could permissibly disclose a client's threat to commit suicide, if the lawyer concluded that suicide was a criminal act or if permitted by AZ-ER 1.14(b).

1.6:320      Disclosure When Required by Law or Court Order

A lawyer is required to disclose information that is otherwise confidential under AZ Rule ER 1.6 when such disclosure is required to comply with the law. This exception is implicit in AZ-ER 1.6 and supported by the Comment to the Rule, and has been described as a "forced exception" to confidentiality when required by compliance with "other law." See 1 G. Hazard & W. Hodes, The Law of Lawyering §§ 1.6:109, 112-114; 1.2:501-502 (2d ed. 1990).

Thus, in Arizona Ethics Opinion No. 87-03, the Committee on the Rules of Professional Conduct held that, where a lawyer receives a cash payment from a client in excess of $10,000 while defending the client against a charge of federal income tax evasion, the lawyer must file the form required by Section 60501 of the Internal Revenue Code, even though that form requires disclosure of the identity of the source of the payment, as well as the source's taxpayer identification number. On the other hand, the Arizona Court of Appeals stated, in Maricopa County Public Defender's Office v. Superior Court In and For County of Maricopa, 187 Ariz. 162, 927 P.2d 822 (App. 1996), that where counsel avows to the trial court that counsel has a conflict of interest that, in counsel's judgment, requires withdrawal, the trial court should not require counsel to disclose information protected by AZ-ER 1.6 as a condition of permitting such withdrawal.

In Arizona Ethics Opinion No. 2000-11, the Committee on the Rules of Professional Conduct ("the Committee") addressed the issue of the obligation of a lawyer subpoenaed to testify in proceedings which might involve information relating to representation of clients of the lawyer. The Committee said that, obviously, if the attorney is asked to testify about communications with clients, the attorney must invoke the attorney-client privilege. The Committee noted, however, that a lawyer acquires a great deal of information "relating to the representation" of a client by means other than attorney-client communications, and that information is encompassed within the duty of confidentiality as well. The Committee concluded that, if a subpoenaed lawyer is asked to reveal such matters, the lawyer must refuse to disclose them on the grounds of client confidentiality, unless and until the lawyer is compelled to testify by a "final order" of a tribunal of competent jurisdiction.

In Arizona Ethics Opinion No. 2001-02, the Committee held that, notwithstanding the provisions 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 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 may develop that might require the attorney to report information under the statute.

1.6:330      Disclosure in Lawyer's Self-Defense

AZ-ER 1.6(d) contains a "self-defense" exception to the general confidentiality requirement which permits disclosure of information relating to the representation of a client in order to respond to allegations concerning the lawyer's representation of the client. See Arizona Ethics Opinion No. 93-02. This permissive disclosure also applies to disciplinary proceedings and malpractice claims against the lawyer. In addition, AZ-ER 1.6(d) permits a lawyer to disclose otherwise confidential information if the lawyer reasonably believes that disclosure is necessary to establish a defense against a criminal charge or civil claim based on conduct in which the client was involved.

One issue which arises in applying this "self-defense" exception to the duty of confidentiality is whether the lawyer may only disclose after formal proceedings have commenced or whether the lawyer is entitled to engage in pre-emptive self-defense disclosure. The Comment to AZ-ER 1.6 clearly authorizes the latter, broader form of self-defense: "The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (d)(4) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity ..." Comment, AZ-ER 1.6, š 12. The Comment cautions, however, that the disclosure should be limited to what is necessary for the lawyer to conduct a defense, and precautions should be taken to minimize the impact upon the client.

AZ-ER 1.6(d) may also authorize permissive disclosure where self-defense disclosure is required to comply with the law. Voluntary disclosure is most likely where the civil or criminal charge against the lawyer involves a failure to disclose. See 1 G. Hazard & W. Hodes, The Law of Lawyering, § 1.6:310. For example, in Arizona Ethics Opinion No. 87-03, the Committee on the Rules of Professional Conduct ruled that, where an attorney receives a cash payment in excess of $10,000 from a client while defending that client against a charge of federal income tax evasion, the attorney must file the form required by Section 60501 of the Internal Revenue Code, even though that form requires disclosure of the identity of the source of the payment and the source's taxpayer identification number.

1.6:340      Disclosure in Fee Dispute

AZ-ER 1.6(d) explicitly permits a lawyer to disclose otherwise confidential information if the lawyer reasonably believes that it is necessary to establish a claim or defense between the lawyer and a client. One common example of this type of dispute is a fee dispute. The Comment to AZ-ER 1.6 states expressly: "A lawyer entitled to a fee is permitted by paragraph (d)94) to prove the services rendered in an action to collect it." Comment, AZ-ER 1.6, š 13.

1.6:350      Disclosure to Prevent a Crime

AZ-ER 1.6(b), unlike the corresponding Model Rule, requires a lawyer to disclose information otherwise protected by AZ-ER 1.6(a) to the extent the lawyer reasonably believes is necessary to prevent the client from committing a criminal act which the lawyer believes is likely to result in death or substantial bodily harm. For example, in Arizona Ethics Opinion No. 91-18, the Committee on the Rules of Professional Conduct, relying both on this provision and the provisions of AZ-ER 1.14(b), held that a lawyer may reveal a client's threat to commit suicide, if the lawyer is satisfied that the suicide would be a criminal act.

AZ-ER 1.6(c), for which there is no counterpart in the Model Rules, permits a lawyer to disclose otherwise confidential information to reveal the intention of the client to commit a crime and the information necessary to prevent that crime. Thus, the crimes that are subject to permissive disclosure in Arizona may not be disclosed at all under the Model Rules, and the crimes that may be disclosed under the Model Rules are subject to mandatory disclosure in Arizona.

The permissive nature of the disclosure of a client's intent to commit a future crime authorized by AZ-ER 1.6(c) must be interpreted in light of the exception to the confidentiality requirement in AZ-ER 1.6(a) for situations where the lawyer has an obligation, under AZ-ER 3.3(a)(2), to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. Thus, in Arizona Ethics Opinion No. 93-10, the Committee on the Rules of Professional Conduct ruled that, where an attorney discovers that the client has given contradictory testimony in two separate legal proceedings, only one of which was handled by the attorney who discovers the situation, the attorney has an obligation to inform the tribunal before which the attorney is representing the client of the situation. Disclosure to the tribunal handling the other proceeding, in which the attorney has not appeared, however, is only permissive. Similarly, in Arizona Ethics Opinion No. 92-02, the Committee held that, where a criminal defense attorney discovers that the client is using two different names in two different criminal proceedings, the attorney only has an obligation to advise the courts involved if the client's usage of different names is tantamount to perjury.

In Arizona Ethics Opinion No. 2001-04, the Committee on the Rules of Professional Conduct considered the obligations of a lawyer in a civil case who receives from a client documents containing privileged or otherwise confidential information which the client had obtained from an employee of the adverse party. On that issue, the Committee concluded that the lawyer must refrain from examining the materials or making use of them, notify (with the client's consent) opposing counsel of the receipt of them, and either abide by opposing counsel's instructions as to the disposition of them or seek a ruling from the court. If the client refuses to consent to notifying opposing counsel, the lawyer may not do so, but must still refrain from examining or using the materials. If the lawyer does so, withdrawal is not required. The Committee went on to observe that, if there is evidence that the client has some complicity in obtaining the materials, and intends to continue to do so, the lawyer must counsel the client about the legal consequences of that course of conduct and instruct the client to discontinue. If the client refuses to do so, then the lawyer may, but is not required to, advise the adverse party or the authorities. The lawyer must also refuse to accept any additional documents of that nature obtained by the client.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

AZ-ER 1.6(b), unlike the corresponding Model Rule, requires a lawyer to disclose information otherwise protected by AZ-ER 1.6(a) to the extent the lawyer reasonably believes is necessary to prevent the client from committing a criminal act which the lawyer believes is likely to result in death or substantial bodily harm. For example, in Arizona Ethics Opinion No. 91-18, the Committee on the Rules of Professional Conduct, relying both on this provision and the provisions of AZ-ER 1.14(b), held that a lawyer may reveal a client's threat to commit suicide, if the lawyer is satisfied that the suicide would be a criminal act.

1.6:370      Disclosure to Prevent Financial Loss

AZ-ER 1.6 now does address the subject of the disclosure of confidential information in order to prevent financial loss. The 2003 amendments to the Rule added two new subparagraphs to AZ-ER 1.6(d) that specifically concern that subject. AZ-ER 1.6(d)(1) permits, but does not require, a lawyer to reveal information otherwise protected by AZ-ER 1.6 " to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services." AZ-ER 1.6(d)(2) has a similar permissive disclosure provision "to mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services." These two provisions were taken from recommendations of the ABA Ethics 2000 Commission which the ABA House of Delegates did not initially approve for addition to the Model Rules. In August 2003, the ABA House of Delegates approved the addition of substantially similar provisions to MR 1.6, as MR 1.6(b)(2) and (3).

These two provisions are new to Arizona, and have not as yet been the subject of any case law or opinions of the Committee on the Rules of Professional Conduct. One issue which they present is their relationship to the retained provisions of AZ-ER 1.6(c). AZ-ER 1.6(c) permits (but does not require) an attorney to reveal the intention of a client to commit a crime and the information necessary to prevent the crime. The language of this paragraph of the Rule is broad enough to encompass client crimes which, if perpetrated, would cause financial loss to the victim(s). The exception, however, applies only to future, and not past, crimes. Thus, an attorney may not reveal to a workers' compensation insurer, without the client's fully informed consent, the fact that the client's monthly compensation checks are in excessive amounts. Arizona Ethics Opinion No. 91-02. Even if the client's conduct in accepting and negotiating the checks constituted criminal conduct, it is not a future crime and may not be disclosed under AZ-ER 1.6(c). Id.

While there is some possible overlap between the range of situations covered by AZ-ER 1.6 and those encompassed by AZ-ER 1.6(d)(1) and (2), their coverage is distinguishable. As the Comment to this portion of the Rule explains:

The range of situations where disclosure is permitted by paragraph (1) of the Rule is both broader and narrower than those encompassed by paragraph (c). Paragraph (c) permits disclosure only of a client's intent to commit a future crime, but is not limited to instances where the client seeks to use the lawyer's services in doing so. Paragraph (d)(1), on the other hand, applies to both crimes and frauds on the part of the client, and applies to both on-going conduct as well as that contemplated for the future. The instances in which paragraph (d)91) would permit disclosure, however, are limited to those where the lawyer's services are or were involved, and where the resulting injury is to the financial interests or property of others. In addition to this Rule, a lawyer has a duty under ER 3.3 not to use false evidence.

Paragraph (d)(2) addresses the situation in which the lawyer does not learn of the client's crime or fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be rectified or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (d)(2) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.

Comment, AZ-ER 1.6, šš 9, 10.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

Issues concerning the lawyer's receipt and disposition of the fruits and instrumentalities of a crime are sensitive and difficult to resolve. While an attorney may not breach any confidentiality that may pertain to the attorney's receipt of such materials, and may not undermine the client's privilege against self-incrimination, the attorney may be required to turn over fruits and instrumentalities of the client's crime, or information regarding them, to law enforcement officials if it can be done in a way that does not link them to the client. See T. Morgan and R. Rotunda, Problems and Materials on Professional Responsibility 243-256 (5th ed. 1991); 1 G. Hazard & W. Hodes, The Law of Lawyering, §§ 1.6:401-402 (2d ed. 1990).

In Hitch v. Pima County Superior Court, 146 Ariz. 588, 708 P.2d 72 (1985), the Court addressed the obligations of a criminal defense attorney who receives from a third party physical evidence that inculpates the attorney's client. If the attorney reasonably believes that the evidence will not be destroyed, the attorney may return the evidence to its source with an explanation of the law regarding concealment and destruction of material evidence. If, however, the attorney has reasonable grounds to believe that the evidence might be destroyed if returned to its source, or if the attorney's client consents, the attorney may turn the evidence over to the prosecution. See also the discussion at Sections 3.4:210 and 3.4:300.

1.6:390      Confidentiality and Conflict of Interest

AZ-ER 1.7(a) establishes the general rule that a lawyer may not accept an engagement by a client if the representation of that client will be directly adverse to the interests of another client. AZ-ER 1.7(b) provides that a lawyer may not represent a client if the representation may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's interests. In both cases, the conflict may be cured if the lawyer reasonably believes that the engagement will not adversely affect the relationship with, and the representation of, the clients involved, and both clients consult after consultation, unless the conflict in question is one to which the client cannot properly consent. The conflict of interest rules are based on three basic considerations: (1) a concern that, where a conflict is present, the lawyer's representation of one or both clients will suffer, (2) the expectation of each client that the lawyer owes them a duty of loyalty, and (3) the concern that representation of conflicting interests will lead to the compromise of information that the lawyer has a duty to maintain in confidence, under AZ-ER 1.6. See Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994); Matter of Soelter, 175 Ariz. 139, 854 P.2d 773 (1993); In re Petrie, 154 Ariz. 295, 742 P.2d 796 (1987); Maricopa County Public Defender's Office v. Superior Court, 187 Ariz. 162, 927 P.2d 822 (App. 1996).

In AZ-ER 1.9, which deals with conflicts with the interests of former clients, the relationship between that conflict of interest rule and the lawyer's obligation to preserve in confidence information protected by AZ-ER 1.6 is even more explicit. Under that Rule, a lawyer is precluded from representing a client whose interests are adverse to those of a former client, without that former client's consent, if the matter being handled for the new client is the same as or is substantially related to the matter the lawyer handled for the former client, or if the new representation would require the lawyer to use to the disadvantage of the former client information relating to the representation of the former client, except as AZ-ER 1.6 would permit.

The conflict of interest rules, and the issues they raise, are more fully discussed in Section 1.7 Conflict of Interest: General Rule, and its subtopics, and in Section 1.9 Conflict of Interest: Former Client, and its subtopics.

1.6:395      Relationship with Other Rules

AZ-ER 1.6(a) makes the duty of confidentiality expressly subject to the provisions of AZ-ER 3.3(a)(2), which requires the lawyer to disclose information relating to the representation of a client which would ordinarily be cloaked with confidentiality where such disclosure "is necessary to avoid assisting a criminal or fraudulent act by the client" before a tribunal. This subjugation of the duty of confidentiality is reinforced and slightly expanded by the provisions of AZ-ER 3.3(b), which states: "The duties stated in paragraph (a) [of AZ-ER 3.3] continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6." Thus, in Arizona Ethics Opinion No. 93-10, the Committee on the Rules of Professional Conduct ruled that, where an attorney discovers that the client has given contradictory testimony in two separate legal proceedings, only one of which was handled by the attorney who discovers the situation, the attorney has an obligation to inform the tribunal before which the attorney is representing the client of the situation. Disclosure to the tribunal handling the other proceeding, in which the attorney has not appeared, however, is only permissive. Similarly, in Arizona Ethics Opinion No. 92-02, the Committee held that, where a criminal defense attorney discovers that the client is using two different names in two different criminal proceedings, the attorney only has an obligation to advise the courts involved if the client's usage of different names is tantamount to perjury.

In Arizona Ethics Opinion No. 2000-02, the Committee on the Rules of Professional Conduct ("the Committee") addressed three different factual scenarios arising in the sentencing context where the lawyer's duty of confidentiality might come into conflict with a lawyer's duty of candor to the court. At the outset of its discussion, the Committee noted that a criminal defense lawyer's duty of candor and disclosure may be overridden by constitutional protections to which the client is entitled. On the other hand, while there is that inherent tension between complying with ethical obligations and diligently representing a criminal defendant, that defendant has no right to the affirmative assistance of counsel in offering false testimony.

The first scenario involved a client charged with DUI who is presented with a plea agreement that requires the client to sign a statement that the client has not been convicted of DUI during the past five years. In an office conference, the client has advised the attorney that he does have a prior DUI conviction within the preceding five years that the State has not alleged. The Committee concluded that the lawyer could not sign a statement concurring in the plea agreement which the lawyer knows contains a material misrepresentation, but could simply cross out the language concerning prior convictions.

The second scenario involved the same predicate facts, except that the client does not desire to take the plea offer but wants to plead guilty directly to the judge. The Committee advised that, if the judge asked no questions concerning prior convictions, then no problem was presented. If the judge does ask such a question of the lawyer, the lawyer may only say that no prior convictions are alleged. If the judge asks the question of the client, and the client says he has no prior DUI convictions, the lawyer has no obligation to correct the misstatement, because the true facts were learned in confidence. The Committee analogized this scenario to allowing the client to testify in narrative form.

The third, and final, scenario involved the same facts, except that the client denied to the lawyer having any prior DUI convictions, but the lawyer's office records reflected that the client was represented on a DUI, and convicted, less than five years ago. The Committee again advised that the lawyer cannot sign a statement concurring in a plea agreement that contains a material misrepresentation, but that if the judge asks the client about prior convictions, and the client denies any, the lawyer has no obligation reveal the client's misstatement.

No such deference is paid to the rights of third parties dealing with the client, or to bar admission or disciplinary authorities. Thus, AZ-ER 4.1 generally provides that a lawyer, in the course of representing a client, may not make a false statement of material fact to a third party, or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client "unless disclosure is prohibited by ER 1.6." Similarly, AZ-ER 8.1 imposes generally a broad duty of candor in connection with applications for admission to the bar and toward disciplinary authorities. AZ-ER 8.1(b), however, states expressly that: "this rule does not require disclosure of information otherwise protected by ER 1.6."

The duty of confidentiality may also be subject to the lawyer's obligation under AZ-ER 1.14(b) to protect a client who cannot act in his or her own best interests. Thus, in Arizona Ethics Opinion No. 90-12, the Committee on the Rules of Professional Conduct, relying heavily on the provisions of AZ-ER 1.14(b), ruled that, if a lawyer reasonably believes that a client cannot adequately act in the client's own best interests, the lawyer may disclose confidential information to the extent necessary for an independent diagnostician to make an assessment of the client's disability. Similarly, in Arizona Ethics Opinion No. 91-18, the Committee concluded that a lawyer could permissibly disclose a client's threat to commit suicide, if the lawyer concluded that suicide was a criminal act or if permitted by AZ-ER 1.14(b).

In all other contexts, the lawyer's duty of confidentiality is paramount to other obligations imposed by the Rules of Professional Conduct. For example, Arizona 8.3 imposes a broad duty upon lawyers to report to the appropriate authorities misconduct engaged in by other lawyers. AZ-ER 8.3(c), however, states expressly that: "[T]his rule does not require disclosure of information otherwise protected by ER 1.6 ..." in Arizona Ethics Opinion No. 90-13, the Committee on the Rules of Professional Responsibility concluded that the presence of this provision in the Arizona Rule distinguished the Arizona ethical regime from that presented in In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), and held that the duty to report the misconduct of other lawyers was overridden by the duty to keep confidential information relating to the representation of a client. See also Arizona Formal Ethics Opinion No. 94-12. Similarly, when a lawyer undertkes an evaluation of a matter for the use of someone other than a client, AZ-ER 2.3(b) cautions that information protected by AZ-ER 1.6(b) may only be disclosed to the extent necessary to provide a report of such an evaluation.

The duty to maintain as confidential information relating to the representation of a client is also part and parcel of the lawyer's duty to supervise the activities of nonlawyer assistants under AZ-ER 5.3. Thus, in Smart Industries Corp., Mfg. v. Superior Court In and For Count of Yuma, 179 Ariz. 141, 876 P.2d 1176 (App. 1994), the Court held that the duty to keep in confidence information relating to representation of a client applies not only to counsel, but also to those who work with, or under the supervision of, counsel as well. The Court went on to explain that a lawyer's duty to supervise, and be responsible for, the conduct of nonlawyer assistants under AZ-ER 5.3 encompasses the protection of client confidences that are communicated or made available to such assistants, and that a lawyer or law firm may properly be disqualified on the basis of a nonlawyer assistant's conduct that would violate the provisions of AZ-ER 1.6. In Arizona Ethics Opinion No. 98-08, the Committee held that an attorney could ethically enter into a contract with an independent paralegal to assist in the conduct of initial client interviews, provided: (1) the attorney supervises and controls the paralegal's activities to insure that the paralegal does not engage in the unauthorized practice of law, (2) there is no sharing of fees with the paralegal, (3) the initial interviews conducted by the paralegal are only with existing clients, and (4) there is no solicitation of new business by the paralegal.

1.6:400   Attorney-Client Privilege

The ancient common law privilege applicable to communications between counsel and client has been recognized in Arizona both by decisional law and by statute. A.R.S. §§ 12-2234, 13-4062(2). The purpose of the privilege is to protect advice given and/or information exchanged during the course of the attorney-client relationship and to encourage candor by the client with counsel. Ulibarri v. Superior Court, 184 Ariz. 382, 909 P.2d 449 (App. 1995), review denied 186 Ariz. 419, 924 P.2d 109 (1996). The privilege, accordingly, has been viewed as central to the effective delivery of legal services. Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993). The scope and applicability of the privilege, however, is much narrower than the duty of confidentiality imposed by AZ-ER 1.6. See discussion in Section 1.6:210, supra.

1.6:410      Privileged Communications

The privilege extends to communications made in confidence for the purposes of obtaining legal advice, even if an attorney-client relationship is not eventually formed. Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984); State ex rel. Corbin v. Weaver, 140 Ariz. 123, 680 P.2d 833 (App. 1984). Consultations with a lawyer to secure personal or business advice, however, are not within the scope of the privilege. G & S Investments v. Belman, 145 Ariz. 258, 700 P.2d 1358 (App. 1984); State ex rel. Corbin v. Weaver, supra. Similarly, information which is provided by an insured to an insurance adjuster is not privileged, even if it is to be transmitted to a lawyer retained to defend the insured. Longs Drug Stores v. Howe, 134 Ariz. 424, 657 P.2d 412 (1983); Butler v. Doyle, 112 Ariz. 522, 544 P.2d 204 (1975); State v. Superior Court, 120 Ariz. 501, 586 P.2d 1313 (App. 1978).

Factual information communicated by the client to the lawyer is not necessarily immunized from discovery from the client. The privilege simply precludes compelling the lawyer to reveal it. Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993); Zork Hardware v. Gottlieb, 170 Ariz. 5, 821 P.2d 272 (App. 1991); Certainteed Corp. v. United Pacific Ins. Co., 158 Ariz. 273, 762 P.2d 560 (App. 1988). Thus, the transmittal of pre-existing documents to counsel does not make them subject to the privilege. State ex rel. Corbin v. Weaver, 140 Ariz. 123, 680 P.2d 833 (App. 1984). Similarly, the privilege does not protect information learned by the lawyer from third parties. Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982).

1.6:420      Privileged Persons

A privilege must be claimed by the holder of the privilege or it is waived. Tripp v. Chubb, 69 Ariz. 31, 208 P.2d 312 (1949). In the case of the attorney-client privilege, the holder of the privilege is the client, but the attorney must assert the privilege in situations where the client either is not a party or is not present to protect it. See Lipschultz v. Superior Court, 128 Ariz. 16, 623 P.2d 805 (1981); Tucson Medical Center v. Misevch, 113 Ariz. 34, 545 P.2d 958 (1976); Hospital Corp. of America v. Superior Court, 157 Ariz. 210, 755 P.2d 1198 (App. 1988). If the holder of the privilege is deceased, the holder's heirs or personal representative may assert it. See Schornick v. Schornick, 25 Ariz. 563, 220 P. 397 (1923). If the holder of the privilege is incompetent, it may be claimed by a duly appointed guardian. Lewin v. Jackson, 108 Ariz. 27, 492 P.2d 406 (1972); Lietz v. Primock, 84 Ariz. 273, 327 P.2d 288 (1958).

1.6:430      Communications "Made in Confidence"

To qualify for the privilege, the communication must be one made between the attorney and client "in confidence." The presence of a third party whose presence is necessary to facilitate communication between the lawyer and the client will ordinarily not defeat the attachment of the privilege. Similarly, the applicability of the privilege is not destroyed by the fact that the communication from the client is revealed by the lawyer to clerical employees of the lawyer, or by their presence when the communications takes place. The statute itself extends the privilege's protection to a lawyer's "secretary, stenographer or clerk." A.R.S. § 12-2234, 13-4062(2).

Recognizing the modern realities of the practice of law and the necessary role of nonlawyer assistants in it, the Court of Appeals has held that the privilege extends to a client's confidential communications made to a lawyer's paralegal or secretary. Smart Industries Corp. v. Superior Court, 179 Ariz. 141, 876 P.2d 1176 (App. 1994); Samaritan Foundation v. Superior Court, 173 Ariz. 426, 844 P.2d 593 (App. 1992), vacated in part on other grounds, 176 Ariz. 497, 862 P.2d 870 (1993). On the other hand, information which is provided by an insured to an insurance adjuster is not privileged, even if it is to be transmitted to a lawyer retained to defend the insured. Longs Drug Stores v. Howe, 134 Ariz. 424, 657 P.2d 412 (1983); Butler v. Doyle, 112 Ariz. 522, 544 P.2d 204 (1975); State v. Superior Court, 120 Ariz. 501, 586 P.2d 1313 (App. 1978).

1.6:440      Communications from Lawyer to Client

The privilege applies to communications from the lawyer to the client that are made in confidence and in furtherance of the attorney-client relationship, as well as to communications from the client to the lawyer

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

In general, the client's identity, the fact of consultation with counsel, fee arrangements, and similar matters are matters relating to the representation of a client which are to remain confidential under AZ-ER 1.6. Such matters, however, are normally found to be outside the scope of the attorney-client privilege and a lawyer may be compelled to disclose them. In most instances, a lawyer must disclose the name of the client. Dunipace v. Martin, 73 Ariz. 415, 242 P.2d 543 (1952). A lawyer should attempt, however, whenever possible, to protect the identity of the client when the lawyer believes that the client would be harmed or embarrassed by disclosure or wishes to remain unidentified. In limited circumstances, the identity of the client may be protected when disclosure of the client's name would be the "last link" in establishing a claim or defense against the client. See Baird v. United States, 279 F.2d 623 (9th Cir. 1960). In such circumstances, the identity of the client may be privileged and, in any event, the lawyer should assert the privilege until legally compelled to disclose the client's name. See 1 G. Hazard & W. Hodes, The Law of Lawyering §§ 1.6:105 (2d ed. 1990).

Similarly, the fact of representation is confidential under AZ-ER 1.6, but usually found to be outside the scope of the attorney-client privilege. State v. Adamson, 136 Ariz. 250, 665 P.2d 972 (1983), cert. denied, 464 U.S. 865 (1983). Preliminary places and means of consultation between the attorney and the client are confidential, but generally fall outside the scope of the attorney-client privilege. Id.

Fee arrangements between the lawyer and the client, and the amount of the fee paid by the client, are confidential under the Rule, but are also generally held to be outside the scope of the attorney-client privilege. A related problem arises concerning identifying the source of attorneys fees in criminal cases. Under certain circumstances, a lawyer may be forced to disclose whether fees were paid by a third party. Additionally, federal law requires a lawyer to report a cash fee in excess of $10,000, or a series of cash payments which exceed $10,000 in related transactions. The identity of the source of the payment, as well as the source's taxpayer identification number, must be reported. Failure to report is a criminal offense. In Arizona Ethics Opinion No. 87-03, the Committee confirmed that an attorney must file the form required by Section 60501 of the Internal Revenue Code after receiving a cash payment in excess of $10,000 while defending a client against a charge of federal income tax evasion.

1.6:460      Legal Assistance as Object of Communication

The purpose of the privilege is to protect advice given and/or information exchanged during the course of the attorney-client relationship and to encourage candor by the client with counsel to better facilitate the delivery of legal services. Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993); Ulibarri v. Superior Court, 184 Ariz. 382, 909 P.2d 449 (App. 1995); review denied 186 Ariz. 419, 924 P.2d 109 (1996). Consultations with a lawyer to secure personal or business advice are not protected by the privilege. G & S Investments v. Belman, 145 Ariz. 258, 700 P.2d 1358 (App. 1984); State ex rel. Corbin v. Weaver, 140 Ariz. 123, 680 P.2d 833 (App. 1984).

1.6:470      Privilege for Organizational Clients

The scope of the attorney-client privilege where the client is a corporate entity was addressed comprehensively by the Arizona Supreme Court in its decision in Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993). The Court held that, in order to determine whether communications between corporate employees and counsel for the corporation will qualify for the corporation's attorney-client privilege, the relevant inquiry concerns the nature and purpose of the communication rather than the identity or position of the corporate employee involved. Id. All communications initiated by the employee and made in confidence to counsel in which the communicating employee is directly seeking to secure or evaluate legal advice for the corporation, will be privileged. Id. Where someone other than the employee initiates the communication, a factual communication by a corporate employee to corporate counsel will be within the corporation's privilege only if it concerns the employee's own conduct within the scope of his or her own employment and is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for that corporate client. Id. The Court was quite specific that counsel's self-initiated interviews of corporate officers, agents or employees who were mere witnesses to events of legal significance to the corporation, would not qualify for the corporation's attorney-client privilege. Id.

A subsequent legislative amendment to A.R.S. § 12-2234, the statutory codification of the attorney-client privilege in civil cases, however, makes all communications between corporate counsel and a corporate officer, agent or employee privileged if they were (1) for the purpose of providing legal advice to either the corporation or to the employee, or (2) for the purpose of obtaining information in order to provide such legal advice. This legislative redefinition of the scope of the privilege (in civil cases) differs from that adopted by the Court in Samaritan Foundation in its treatment as privileged of the one category of communications which the Court specifically found not to qualify for privileged statusěcounsel's interviews of corporate employees or agents who are mere witnesses to events. Significantly, the statute which defines the scope of the privilege in criminal cases, A.R.S. § 13-4062(2), was not similarly amended. Thus, the scope of the privilege for organizational clients in criminal cases is defined by A.R.S. § 13-4062(2) and the Supreme Court's Samaritan Foundation decision. Roman Catholic Diocese of Phoenix v. Superior Court (State of Arizona), 204 Ariz. 225, 62 P.3d 970 (App. 2003).

1.6:475      Privilege for Governmental Clients

There are no Arizona authorities which discuss specifically the scope of the attorney-client privilege where the lawyer's client is a governmental entity. See the discussion of the scope of the privilege for organizational clients in Section 1.6:470, supra.

1.6:480      Privilege of Co-Clients

In the situation where a lawyer undertakes joint representation of multiple clients with respect to a matter (assuming such joint representation is permissible under the Rules concerning conflicts of interest), communications with the lawyer will not be privileged as between the joint clients, but will be as against third parties. Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984); Hellyer v. Hellyer, 129 Ariz. 453, 632 P.2d 263 (App. 1981); Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (App. 1981); Nichols v. Elkins, 2 Ariz.App. 272, 408 P.2d 34 (App. 1965).

1.6:490      Common-Interest Arrangements

There are no Arizona authorities which address whether the attorney-client privilege applies and, if so, its proper scope, in situations involving parties represented by separate counsel but with interests in common in a particular matter. But see the discussion of the scope of the privilege for co-clients in Section 1.6:480, supra.

1.6:495      Duration of Attorney-Client Privilege

While there are no Arizona cases that specifically address the issue with respect to the attorney-client privilege, the general rule is that, if the holder of a privilege is deceased, the holder's heirs or personal representative may assert it. Schornick v. Schornick, 25 Ariz. 563, 220 P. 397 (1923). This suggests that the privilege survives the death of the client. The privilege certainly survives the termination of the attorney-client relationship.

1.6:500   Waiver of Attorney-Client Privilege

A privilege must be claimed by the holder of the privilege or it is waived. Tripp v. Chubb, 69 Ariz. 31, 208 P.2d 312 (1949). That rule applies with full force to the attorney-client privilege. A waiver of a privilege can be express, or implied from the failure to object to testimony on matters subject to the privilege. Throop v. F.E. Young & Co., 94 Ariz. 146, 382 P.2d 560 (1963). Generally, once a privilege is waived, it cannot be reasserted.

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

The client can agree to voluntarily waive the attorney-client privilege. The privilege is waived if the client voluntarily testifies to communications subject to the privilege. Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984); Tripp v. Chubb, 69 Ariz. 31, 208 P.2d 312 (1949). The privilege can also be waived by the client's failure to object to testimony by the attorney as to privileged matters. United California Bank v. Prudential Insurance Co., 140 Ariz. 238, 681 P.2d 390 (App. 1983).

1.6:520      Waiver by Subsequent Disclosure

Allowing third parties access to confidential information may remove it from the scope of the attorney-client privilege. See State v. Superior Court, 120 Ariz. 501, 586 P.2d 1313 (App. 1978) (statements made by defendant to claims adjuster were not privileged even though adjuster had promised to cooperate with defendant's lawyer). The privilege may also be waived by showing privileged materials to a witness to refresh the witness' recollection, and thereby making them subject to production under Rule 612 of the Arizona Rules of Evidence. Samaritan Health Services v. Superior Court, 142 Ariz. 435, 690 P.2d 154 (App. 1984).

1.6:530      Waiver by Putting Assistance or Communication in Issue

A waiver of the attorney-client privilege may result where the client injects into a dispute the advice of counsel as the basis for the client's actions. Ulibarri v. Superior Court, 184 Ariz. 382, 909 P.2d 449 (App. 1995), review denied 186 Ariz. 419, 924 P.2d 109 (1996). There is an implied waiver of the privilege where the client legally attacks the quality of the lawyer's representation. State v. Zuck, 134 Ariz. 509, 658 P.2d 162 (1982); Waitkus v. Mauet, 157 Ariz. 339, 757 P.2d 615 (App. 1988).

1.6:600   Exceptions to Attorney-Client Privilege

As is discussed in the Sections which follow, the only exceptions to the privilege which the Arizona courts have recognized to date are the so-called "crime-fraud" exception, and the situation where the client attacks the quality of the lawyer's services.

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

The Arizona courts have not as yet recognized such an exception to the attorney-client privilege.

1.6:620      Exception for Client Crime or Fraud

The Arizona courts have recognized a so-called "crime-fraud" exception to the attorney-client privilege, which provides that the privilege will not apply to communications which are made in furtherance of a crime or fraud. Buell v. Superior Court, 96 Ariz. 62, 391 P.2d 919 (1964); Pearce v. Stone, 149 Ariz. 567, 720 P.2d 542 (App. 1986). Under this exception, an attorney may be compelled to testify as to a communication that occurred when a client consulted a lawyer for the purpose of obtaining assistance in engaging in conduct that the client knows or reasonably knows is a crime or a fraud. See 1 G. Hazard & W. Hodes, The Law of Lawyering § 1.6:104 (2d ed. 1990). The "crime-fraud" exception to the privilege will only be applied, however, where there is a prima facie showing that the attorney was retained by the client for the express purpose of promoting intended or continuing criminal or fraudulent activity. State v. Fodor, 179 Ariz. 442, 880 P.2d 662 (App. 1994).

1.6:630      Exception for Lawyer Self-Protection

The Arizona courts have recognized an exception to the privilege, characterized as an "implied waiver" of the privilege rather than an exception to it, in situations where the client attacks the quality of the lawyer's representation. State v. Zuck, 134 Ariz. 509, 658 P.2d 162 (1982); Waitkus v. Mauet, 157 Ariz. 339, 757 P.2d 615 (App. 1988).

1.6:640      Exception for Fiduciary-Lawyer Communications

The Arizona courts have not as yet recognized such an exception to the attorney-client privilege.

1.6:650      Exception for Organizational Fiduciaries

The Arizona courts have not as yet recognized such an exception to the attorney-client privilege.

1.6:660      Invoking the Privilege and Its Exceptions

A privilege must be claimed by the holder of the privilege or it is waived. Tripp v. Chubb, 69 Ariz. 31, 208 P.2d 312 (1949). In the case of the attorney-client privilege, the holder of the privilege is the client, but the attorney must assert the privilege in situations where the client either is not a party or is not present to protect it, or does not appreciate that matters covered by the privilege are being sought. See Lipschultz v. Superior Court, 128 Ariz. 16, 623 P.2d 805 (1981); Tucson Medical Center v. Misevch, 113 Ariz. 34, 545 P.2d 958 (1976); Hospital Corp. of America v. Superior Court, 157 Ariz. 210, 755 P.2d 1198 (App. 1988). If the holder of the privilege is deceased, the holder's heirs or personal representative may assert it. See Schornick v. Schornick, 25 Ariz. 563, 220 P. 397 (1923). If the holder of the privilege is incompetent, it may be claimed by a duly appointed guardian. Lewin v. Jackson, 108 Ariz. 27, 492 P.2d 406 (1972); Lietz v. Primock, 84 Ariz. 273, 327 P.2d 288 (1958). An exception to the privilege, quite obviously, must be, and generally is, asserted by the party seeking to defeat the privilege's applicability.

Once an assertion of privilege is made, whether the privilege applies to the particular factual situation presented is an issue of law to be determined by the court. State ex rel. Babbitt v. Arnold, 26 Ariz.App. 333, 548 P.2d 426 (1976); Gordon v. Industrial Commission, 23 Ariz.App. 457, 533 P.2d 1194 (1975); Blazek v. Superior Court of the State of Arizona, 177 Ariz. 535, 869 P.2d 509 (App. 1994). Privileges are to be strictly construed, and the burden of sustaining the existence and applicability of the privilege is on the person claiming it. Throop v. F.E. Young & Co., 94 Ariz. 146, 382 P.2d 560 (1963); G & S Investments v. Belman, 145 Ariz. 258, 700 P.2d 1358 (App. 1984). If the claim of privilege is sustained, it is improper to comment on its invocation in the presence of the jury. State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979). Where a claim of privilege is overruled, a petition for special action (interlocutory appeal) is the appropriate vehicle for seeking appellate relief for a party that has been ordered to divulge what that party believes is privileged material. Ulibarri v. Superior Court, 184 Ariz. 382, 909 P.2d 449 (App. 1995), review denied 186 Ariz. 419, 924 P.2d 109 (1996); Blazek v. Superior Court, 177 Ariz. 535, 869 P.2d 509 (App. 1994).

1.6:700   Lawyer Work-Product Immunity

Rule 26(b)(3) of the Arizona Rules of Civil Procedure (hereinafter "Ariz.R.Civ.P.") represents a partial codification of the "work product" privilege enunciated in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L.Ed. 451 (1947) and its progeny. See Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764 (1958); Emergency Care Dynamics, Ltd. v. Superior Court, 188 Ariz. 32, 932 P.2d 297 (App. 1997). The primary purposes of the privilege are to preserve the integrity of the adversary system of litigation, and to permit attorneys to adequately prepare for trial without fear that the results of their efforts will be available to their adversaries through discovery. Brown v. Superior Court In and For Maricopa County, 137 Ariz. 327, 670 P.2d 725 (1983).

1.6:710      Work-Product Immunity

Under Rule 26(b)(3), Ariz.R.Civ.P., limited protection from discovery or compelled disclosure is afforded to documents and tangible things "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative ..." An expert retained by counsel or by the client at counsel's direction to investigate and produce reports on technical aspects of specific litigation is considered part of the lawyer's investigative staff and the opinions and theories of such an expert constitute protectible "work product." State of Arizona v. Ybarra, 161 Ariz. 188, 777 P.2d 686 (1989).

This does not mean, however, that all materials generated by counsel, or at counsel's direction will be entitled to protection. Zimmerman v. Superior Court In and For Maricopa County, 98 Ariz. 85, 402 P.2d 212 (1965). For example, the "work product" doctrine does not immunize from discovery a lawyer's oral or written communications with an expert who has been hired to provide expert testimony, even if that expert has also been retained to consult with counsel as well. Emergency Care Dynamics, Ltd. v. Superior Court, 188 Ariz. 32, 932 P.2d 297 (App. 1997). Such communications may be protected, however, if the expert is only a consulting, and not a testimonial, expert. Id.

Whether the "work" product privilege applies is determined by the nature of the document and the factual setting of its preparation, whether it contains analyses or opinions or purely factual data, and whether it was requested or prepared at the specific instance of the party or an attorney or in the ordinary course of business. State ex rel. Corbin v. Weaver, 140 Ariz. 123, 680 P.2d 833 (App. 1984); Brown v. Superior Court In and For Maricopa County, 137 Ariz. 327, 670 P.2d 725 (1983). Where the issue has been raised, the Court has available the option of the materials in question for an in camera inspection to determine whether the privilege has been properly invoked. Id.

1.6:720      Ordinary Work Product

Materials "prepared in anticipation of litigation or for trial," but which do not contain "the mental impressions, conclusions, opinions or legal theories if an attorney or other representative of a party" are at times referred to as "ordinary work product." The privilege accorded such materials is a qualified privilege, but the disclosure of such trial preparation materials may be had only upon a dual showing by the party seeking disclosure: (1) that there is a substantial need for the materials sought, and (2) that the party cannot obtain the substantial equivalent of the materials by other means without undue hardship. In the case of a party seeking production of witness interviews or statements, the fact that the witnesses have testified to conflicting versions of the same events may be sufficient. Klaiber v. Orzel, 148 Ariz. 320, 714 P.2d 813 (1986); but cf. Lumber Country, Inc. v. Superior Court of State, County of Maricopa, 155 Ariz. 98, 745 P.2d 156 (1987). Similarly, the fact that the statements in question were taken shortly after the events in question may give them a unique character which in and of itself meets the standard for production. Longs Drug Stores v. Howe, 134 Ariz. 424, 657 P.2d 412 (1983); Butler v. Doyle, 112 Ariz. 522, 544 P.2d 204 (1975).

1.6:730      Opinion Work Product

Materials "prepared in anticipation of litigation or for trial" which do contain the "mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party" are at times referred to as "opinion work product," and are entitled to somewhat greater protection than "ordinary work product." Rule 26(b)(3) itself suggests that the privilege against the disclosure of such opinion work product materials may be virtually absolute, when it admonishes courts to "protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." See Longs Drug Stores v. Howe, 134 Ariz. 424, 657 P.2d 412 (1983).

1.6:740      Invoking Work-Product Immunity and Its Exceptions

While there are no Arizona cases that specifically address the point, given the fact that the privilege protects materials "prepared in anticipation of litigation or for trial," and that its purpose is, at least in part, to permit attorneys to adequately prepare for trial without the threat that the products of their efforts will be discoverable by adverse parties and their counsel, it would seem logical to assume that both the attorney and, derivatively, the party represented are holders of the privilege. It would also seem logical to assume that the rules generally applicable to privileges apply, i.e., that the party invoking the protections of a privilege bears the burden of demonstrating its applicability, and that privileges are generally to be narrowly construed.

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

A waiver of the "work product privilege" may result from showing materials ordinarily subject to the privilege to a witness for the purpose of refreshing the witness' recollection, and thereby making them subject to production under Rule 612 of the Arizona Rules of Evidence. Samaritan Health Services v. Superior Court, 142 Ariz. 435, 690 P.2d 154 (App. 1984). There are no Arizona cases discussing the issue of waiver of this privilege in other contexts, but it would seem logical to assume that the general rules concerning waiver of privileges would apply.

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

See discussion in Section 1.6:750, supra.

1.6:770      Exception for Crime or Fraud

The Arizona courts have not as yet recognized any "crime-fraud" exception to the "work product" privilege. But see discussion in Section 1.6:620, supra.