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End-of-life notice: American Legal Ethics Library

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

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

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of Arizona Rule

1.9:101      Model Rule Comparison

The principal change effected by the 2003 amendments was to move what was formerly AZ-ER 1.10(b) to this Rule as AZ-ER 1.9(b), with changes in wording for purposes of clarity. In addition, the requirement was added that the consent of a former client to a conflict covered by this Rule be confirmed in writing.

AZ-ER 1.9 is, as a consequence of the 2003 amendments, now substantially identical to MR 1.9. In fact, the only difference is that AZ-ER 1.9(c) does not contain the phrase "or whose present or former firm has formerly represented a client in a matter" which appears in MR 1.9(c). The Comments to AZ-ER 1.9 and MR 1.9 are identical.

1.9:102      Model Code Comparison

The Disciplinary Rules of the former Model Code of Professional Responsibility contained no counterparts to either AZ-ER 1.9(a) or 1.9(b). The problem of lawyers accepting engagements adverse to the interests of former clients was generally dealt with under the provisions of Canon 9 of the Code, which provided that a lawyer should avoid even "the appearance of impropriety." EC 4-6 of the Code stated that: "[T]he obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment."

The final sentence of AZ-ER 1.9(b) permits a lawyer to use information relating to the representation of a former client that "has become generally known." Such use of information concerning a former client that is in the public domain was also not prohibited by the Code. The provisions of AZ-ER 1.9(a), which permit a former client to consent, after consultation, to what would otherwise be a conflict of interest, are in effect similar to former DR 5-105(C) of the Code.

1.9:200   Representation Adverse to Interest of Former Client--In General

AZ-ER 1.9 articulates a general rule that a lawyer shall not represent any person or entity whose interests are materially adverse to those of a client whom the lawyer has formerly represented in the same or a substantially related matter. In addition, under Rule AZ-ER 1.9(c), a lawyer may not use information relating to a former representation to the disadvantage of a former client, unless (1) AZ-ER 1.6 would permit the use of the information with respect to a current client, or (2) the information in question has become generally known. The Arizona authorities have tended to blend together the nominally separate prohibitions of these two subparts of the Rule, reasoning that the danger addressed by the prohibition of accepting representation adverse to the interests of a former client is that information learned during the representation of the former client may be used to that client's disadvantage. In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990). One of the aims of the Rule is to protect the former client from that occurring; another is to avoid a public perception that lawyers are free to, and do, switch sides at will. Id.

The first step in the analysis dictated by AZ-ER 1.9 is to determine whether the party claimed or claiming to be a "former client" did in fact have a lawyer-client relationship in the past with the lawyer involved. Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989). The fact that a consultation with the lawyer was brief does not negate a conclusion that an attorney-client relationship was formed; the fact that payment for legal services was made is persuasive evidence that one was in fact established. Id. The Arizona authorities have recognized, however, that the test employed for determining whether an attorney-client relationship was formed at some point in the past may vary depending upon the context in which the issue arises.

Thus, in Arizona Opinion No. 92-06, the Committee on the Rules of Professional Conduct ("the Committee") addressed an inquiry from a Public Defender who was currently defending A on charges of felony burglary and theft. The charges had originally been brought against A and B, but B, represented at the time by a private attorney, had agreed to a plea bargain. At A's upcoming criminal trial, A intended to place the blame for the crime on B. In the interim, however, the Public Defender's Office had been appointed to represent B on a petition to revoke B's probation which had been dismissed before there was any contact between the Office and B. In addition, the Public Defender's Office had also been appointed to represent B on new and unrelated charges of burglary and trespass, but B failed to appear for the preliminary hearing, and again there was no substantive contact between B and the Office.

In assessing whether B should be considered either a current or former client of the Public Defender's Office for conflict of interest purposes, the Committee used a two-part test. The first question to be addressed, according to the Committee, was whether confidences were revealed by the putative former client and whether there was substantial danger that information protected by AZ-ER 1.6 would be used to that putative former client's disadvantage. The second part of the analysis was whether the Public Defender's Office had in fact undertaken the representation of B. Finding that there had been no disclosure of confidences by B, and that the Public Defender's Office had not taken any steps on B's behalf, the Committee concluded that the inquiring Deputy Public Defender need not withdraw from the representation of A at A's upcoming trial, but cautioned that its conclusion was conditioned on the Public Defender's Office not undertaking to represent B or acquiring any protected information from B, while A's matter was pending.

In another context, the Committee ruled that an attorney-client relationship would not ordinarily be formed between an applicant for legal services and Community Legal Services ("CLS") simply by the applicant completing the client intake form in which CLS sought financial information necessary to determine the applicant's eligibility for assistance. Arizona Ethics Opinion No. 91-24. Accordingly, a volunteer lawyer would not ordinarily be precluded from accepting a referral from the Volunteer Lawyers Program, a joint project of the Maricopa County Bar Association and CLS, of a client whose interests were adverse to a person who had applied for legal assistance from CLS.

Once it is determined that an attorney-client relationship was in fact formed between the attorney and the putative former client, AZ-ER 1.9(a) does not require that confidences and secrets in fact have been divulged in order for a conflict to exist or for disqualification to be proper. Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989). The Rule prohibits subsequent representation of an individual whose interests are substantially adverse to those of a former client. Id. The attorney is not given the option of showing that there is no danger of misuse of confidential information because the attorney never received any. Id. Because of the mandatory nature of AZ-ER 1.9(a), there is in effect a presumption that confidences were divulged by the former client. Id.

One problematical area frequently overlooked by practitioners arises out of the situation where an attorney has undertaken the joint representation of multiple clients, whose interests potentially conflict, in a single matter. If that potential conflict becomes actual and/or one of the joint clients withdraws its prior consent, so that the attorney must withdraw from the representation of that client, then that client becomes a "former client" of the attorney, and the requirements of AZ-ER 1.9 must be met for the attorney to continue with the representation of the other clients involved. Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 742 P.2d 292 (App. 1987); Arizona Ethics Opinion No. 92-07.

The Committee has cautioned practitioners to take into account the possibility of conflicts of interests with current or former clients in forming "Of Counsel" relationships with other lawyers or firms. Arizona Ethics Opinion No. 87-24. Similarly, the Committee has held that it may be permissible, under certain circumstances, for a firm to "lease" the law practice of a solo practitioner who is taking a year's leave of absence, but the lessor firm may not take over the representation of clients of the departing solo practitioner if the firm was currently representing, or had represented in the past, clients with adverse interests. Arizona Ethics Opinion No. 92-08.

AZ-ER 1.9(a) provides that a representation that would otherwise be prohibited by that subpart may be undertaken if "gives informed consent, confirmed in writing." These are both defined terms in AZ-ER 1.0. Under AZ-ER 1.0(b), "confirmed in writing" "denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent . . .If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter." AZ-ER 1.0 (e) defines "informed consent" as "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably alternatives to the proposed course of conduct." In the context of the conflict of interest rules, such as AZ-ER 1.9(a):

To satisfy the requirement of full disclosure by a lawyer before undertaking to represent two conflicting interests, it is not sufficient that both parties be informed of the fact that the lawyer is undertaking to represent both of them, but he must explain the nature of the conflict of interest in such detail so that they can understand the reasons why it would be desirable for each to have independent counsel, with undivided loyalty to the interests of each of them.

Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 286, 742 P.2d 292, 297 (App. 1987). The consent of the client must be freely given, and cannot be extracted through the imposition of financial pressures or any other form of coercion. Matter of Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997). The burden of establishing that there was an appropriate disclosure and a fully informed consent is on the lawyer, and any doubts or ambiguities on the issue will be resolved against the lawyer. In re Neville, 147 Ariz. 106, 115, 708 P.2d 1297, 1306 (1985).

Not all conflicts can be cured, however, by client consent. A lawyer cannot properly ask for consent or represent a client on the basis of consent, if a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances. Comment to AZ-ER 1.7; In re Bentley, 141 Ariz. 593, 688 P.2d 601 (1984); Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 742 P.2d 292 (App. 1987).

In Arizona Ethics Opinion No. 96-04, the Committee considered the issues presented when a law firm initially represents both a driver and a passenger in a personal injury case against another driver, and eventually refers the passenger to another firm for separate representation. The Committee concluded that if, in that situation, the firm continues to represent the driver but retains an interest in recovering, as its fee, a portion of any award in favor of the passenger (who is then a former client), a conflict is presented which cannot be cured by client consent.

Where the conflict with the interests of a former client comes to light after the lawyer has accepted and commenced the engagement giving rise to it, and the former client will not grant consent, then the lawyer must withdraw. AZ-ER 1.16(a). In appropriate circumstances, where the lawyer does not voluntarily withdraw, the former client may seek, and the court may order, the lawyer's disqualification. Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989). Where counsel avows that counsel has an ethical conflict that requires withdrawal, the trial court should not ordinarily require defense counsel to disclose confidential information as a condition of permitting withdrawal. Maricopa County Public Defender's Office v. Superior Court In and For Maricopa County, 187 Ariz. 162, 927 P.2d 822 (App. 1996).

1.9:210      "Substantial Relationship" Test

AZ-ER 1.9 provides that a lawyer shall not represent any person or entity whose interests are materially adverse to those of a client whom the lawyer has formerly represented "in the same or a substantially related matter ..." This test is relatively easy to apply where the matters involved are the same. Thus, in Matter of Soelter, 175 Ariz. 139, 854 P.2d 773 (1993), the Court agreed that it was a violation of AZ-ER 1.9, and grounds for the imposition of discipline, for a lawyer to represent a wife in divorce proceedings, and then abandon that representation and undertake the representation of the husband in the divorce. Similarly, in Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989), the Court approved the disqualification of a lawyer representing the wife in divorce proceedings, where that same lawyer had previously consulted with the husband on domestic relations issues.

In Arizona Ethics Opinion No. 91-21, the Committee ruled that, if an attorney-client relationship has been established between the County Attorney and a custodial parent in connection with efforts to obtain child support payments, the County Attorney may not thereafter assist the non-custodial parent in an effort to seek a reduction in the amount of such support payments. Similarly, in Arizona Ethics Opinion No. 96-04, the Committee considered the issues presented when a law firm initially represents both a driver and a passenger in a personal injury case against another driver, and eventually refers the passenger to another firm for separate representation. The Committee concluded that if, in that situation, the firm continues to represent the driver but retains an interest in recovering, as its fee, a portion of any award in favor of the passenger (who is then a former client), a conflict is presented which cannot be cured by client consent.

Determining what matters are "substantially related" to a prior representation, however, is somewhat more difficult. The Comment to AZ-ER 1.9 offers only the following guidance:

The scope of a "matter" for purposes of this Rule may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client . . . The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

Comment, AZ-ER 1.9, 2.

Thus, in Matter of Feeley, 180 Ariz. 41, 881 P.2d 1146 (1994), the Respondent had been involved in the preparation of an agreement pursuant to which the lawyer's client, Interconnect Industries was to purchase an entity called Salmi Enterprises. A separate individual had arranged for an entity called Fillanks Investment, Ltd. to provide financial assistance to Interconnect, in the form of a loan, to complete the purchase. The loan deal eventually fell through, and Fillanks retained Feeley to help secure the return of the sum of $200,000 it had advanced to Interconnect. The Court held that this subsequent engagement represented an impermissible conflict of interest because of Feeley's prior role in preparing the purchase agreement which initiated the underlying transaction.

In Arizona Ethics Opinion No. 92-07, the Committee addressed an inquiry from a Public Defender who had been appointed to represent defendant A on charges of burglary and theft, which A intended to claim had been committed by B. the Public Defender's Office was currently representing B with respect to a burglary that had been committed in a fashion that was nearly identical to the one with which A was charged. The Office had previously represented C and D, who were both juveniles, in connection with the same burglary with which B was charged. Finally, the Office had also represented an individual identified as E on wholly unrelated burglary and theft charges, and a subsequent probation violation charge. The inquiry was prompted by the fact that the prosecutor in A's case had recently disclosed to the inquiring Public Defender, that he intended to call B, C, D and E as witnesses against A in the prosecution's case in chief.

The Committee initially ruled that, because of the conflict between the interests of current clients A and B, the Public Defender was required to withdraw from the representation of A, which would operate to make A a "former client." Consequently, because A and B had material adverse interests in the same matter which the Office had handled for A, the Office was required to resign from the representation of B as well. With respect to C, D and E, the Committee stated that the issue was whether the subject matter of the representation of those individuals was "substantially related" to the defense of A, and offered the following test for determining that:

. . . two cases are substantially related if they arise from a "common nucleus of operative facts," or where the two representations present a "substantial danger" of the former client's confidences being used against that client in the subsequent representation.

See also Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984); Arizona Ethics Opinion No. 91-05.

The Committee addressed the issue again in Arizona Ethics Opinion No. 94-06, in responding to an inquiry from a lawyer who had served as in-house counsel for an insurance company until 1988, and then entered private practice. In 1993, the inquiring lawyer had undertaken the representation of a new client who had a potential claim against that same insurance company. The inquiring lawyer had no knowledge of or involvement in the claim while he worked for the insurance company, but the insurance company nevertheless objected to his involvement, claiming that he had acquired a familiarity with its personnel and business practices which he could use to its disadvantage in prosecuting the new claim. The lawyer withdrew, and inquired of the Committee whether such a withdrawal was necessary.

The Committee opined that, under the facts presented, there was no need for the lawyer to withdraw, because the fact that the lawyer had handled the same types of cases as that of the new client while the lawyer worked for the insurance company did not ipso facto satisfy the "substantially related" test. The Committee held that the language of both the Rule (AZ-ER 1.9) and the Comment suggested that, for two matters to be substantially related to each other, there had to be some factual nexus between them. Accordingly, in the Committee's view, it was proper for the lawyer to represent clients with claims against his former insurance company employer, even if the claim was precisely the same type of matter on which he had previously defended the company, provided that the matter had no substantial factual relationship to any matter he worked on when employed by the company. The Committee dismissed the company's claim that the lawyer's familiarity with its personnel and business practices was sufficient to require the lawyer's withdrawal, pointing out that was the type of information that would routinely be learned during discovery and would not give the lawyer any unfair advantage in a routine insurance claim. See also Arizona Ethics Opinion No. 92-03, where the Committee held that an attorney who had represented a corporation in a stock dispute several years ago could handle an unrelated arbitration proceeding against the former client corporation.

In Arizona, then, there are two alternative bases on which two matters can be found to be "substantially related": (1) a significant factual nexus between them, or (2) a substantial danger that the former client's confidences may be used against that client in the subsequent engagement. Thus, in In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990), the Respondent had been a contract public defender for the City of Kingman in 1982 and 1983 and, in that capacity, had defended a Mr. Otto on three separate occasions on charges of operating a motor vehicle while under the influence of alcohol. In 1986, while employed as a contract Deputy County Attorney in the Mohave County Attorney's Office, the Respondent represented the State in prosecuting two criminal charges against Mr. Otto, who was charged with a third DUI offense within a period of sixty (60) months which, upon conviction, leads to an enhanced sentence. The Court held that Respondent had engaged in representation that involved an impermissible conflict of interest under AZ-ER 1.9, because Respondent's interests as a prosecutor were materially adverse to the interests of Respondent's former client, Mr. Otto. The Court indicated that it was not necessary for Mr. Otto's prior DUI convictions to be an element of the subsequent offense to establish a "substantial relationship" between the former and the present engagements, because the subsequent prosecution of Otto by his former defense counsel created a substantial danger that confidential information revealed during the course of the former attorney/client relationship would be used against the former client.

A similar result was reached in State v. Hursey, 176 Ariz. 330, 861 P.2d 615 (1993), where a private attorney, Mr. Callahan, who had represented Hursey twice on earlier criminal charges, subsequently accepted a position as a Deputy Pinal County Attorney. Hursey was then arrested again, and Callahan was assigned to handle the prosecution. On the eve of trial, Callahan alleged the two prior criminal convictions, on which he had represented Hursey, for sentencing enhancement purposes. After Hursey was convicted, Callahan delegated to another Deputy County Attorney the task of proving the prior criminal convictions. The Court held that this was a conflict of interest on the part of Callahan because the two prior criminal convictions were "directly in issue" in the subsequent prosecution, and there was an unacceptable danger that Callahan would make use of confidential information he had gained from representing Hursey in private practice. The Court went on to note that the "appearance of impropriety" could not be alleviated by merely assigning part of the case to another prosecutor. See also Arizona Ethics Opinion No. 85-06, where the Committee held that a Deputy County Attorney, who had previously worked at the Public Defender's Office, where he had represented a particular criminal defendant and had discussed trial errors with a co-defendant's counsel, could not prosecute the co-defendants without their defense counsel's consent. On the other hand, in Arizona Ethics Opinion No. 89-04, the Committee ruled that a former Deputy County Attorney, who had taken a position as a Public Defender, could represent a defendant being prosecuted by his former employer, if the only knowledge he had gained about the client in his previous employment was that the defendant was being investigated or charged.

1.9:220      Material Adversity of Interest

AZ-ER 1.9 provides that a lawyer shall not represent any person or entity whose "interests are materially adverse" to the interests of a client whom the lawyer has formerly represented in the same or a substantially related matter. Quite obviously, if the present and former clients are opponents in litigation, or are on opposite sides of a transaction, their interests would be considered "materially adverse." There are other, less obvious, situations, however, where the Arizona authorities have found material adversity between the interests of present and former clients.

For example, in Arizona Ethics Opinion No. 96-04, the Committee considered the issues presented when a law firm initially represents both a driver and a passenger in a personal injury case against another driver, and eventually refers the passenger to another firm for separate representation. The Committee concluded that if, in that situation, the firm continues to represent the driver but retains an interest in recovering, as its fee, a portion of any award in favor of the passenger (who is then a former client), a conflict is presented which cannot be cured by client consent. Implicit in that determination was the conclusion that the interests of the driver in an automobile accident case, and the interests of the driver's passenger, are materially adverse.

It appears also to be well settled that the interests of a criminal defendant and the interests of witnesses who are to be called to testify against that defendant are "materially adverse." Maricopa County Public Defender's Office v. Superior Court In and For Maricopa County, 187 Ariz. 162, 927 P.2d 822 (App. 1996); Arizona Ethics Opinion No. 92-07. Thus, in Arizona Ethics Opinion No. 91-05, the Committee ruled that where a lawyer plans to represent a criminal defendant in a criminal proceeding in which a witness for the prosecution is an individual whom the lawyer's partner formerly represented in a substantially related matter, that representation will violate AZ-ER 1.9(a), unless the fully informed consent of the former client witness is obtained. Similarly, in Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 742 P.2d 292 (App. 1987), the Court implicitly held that the interests of co-defendants in a civil case, whose versions of the facts differed, were materially adverse.

In State ex rel. Romley v. Superior Court In and For Maricopa County, 181 Ariz. 378, 891 P.2d 246 (App. 1995), the issue addressed was whether the prosecutor in a criminal matter had a conflict of interest that required withdrawal or disqualification when that prosecutor's office was also prosecuting charges against the victim in a separate and unrelated criminal matter. The Court did not reach the issue of whether the interests of the criminal defendant and the victim were "materially adverse" to each other, because it held that a prosecutor does not "represent" the victim in a criminal trial as a "client," within the meaning of the Rules of Professional Conduct.

1.9:230      Relevance of "Appearance of Impropriety" Standard [see also 1.7:230]

Although the Model Rules of Professional Conduct did not retain the prohibition on the appearance of impropriety contained in Canon 9 of the Code of Professional Responsibility, the Arizona Supreme Court has held that the "appearance of impropriety" standard survives as part of any analysis of a possible conflict of interest. Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986); Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984); State ex rel. Romley v. Superior Court, 181 Ariz. 378, 891 P.2d 246 (App. 1995); Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 742 P.2d 292 (App. 1987). An appearance of impropriety should be enough to cause an attorney to closely scrutinize whether to proceed with the engagement that gives rise to the conflict, but it is generally "too slender a reed" on which to rest an order requiring the attorney's disqualification, except in the rarest of cases. Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 289, 742 P.2d 292, 299 (App. 1987).

Such a rare case was presented in State v. Hursey, 176 Ariz. 330, 861 P.2d 615 (1993), where a private attorney, Mr. Callahan, who had represented Hursey twice on earlier criminal charges, subsequently accepted a position as a Deputy Pinal County Attorney. Hursey was then arrested again, and Callahan was assigned to handle the prosecution. On the eve of trial, Callahan alleged the two prior criminal convictions, on which he had represented Hursey, for sentencing enhancement purposes. After Hursey was convicted, Callahan delegated to another Deputy County Attorney the task of proving the prior criminal convictions. The Court held that this was a conflict of interest on the part of Callahan because the two prior criminal convictions were "directly in issue" in the subsequent prosecution, and there was an unacceptable danger that Callahan would make use of confidential information he had gained from representing Hursey in private practice. The Court went on to note that the "appearance of impropriety" could not be alleviated by merely assigning part of the case to another prosecutor. Similarly, the Court in In re Evans, 113 Ariz. 458, 556 P.2d 792 (1976), refused to permit a lawyer to sue a former client, even if the lawyer had not received any confidential information, because of the appearance of impropriety. Finally, one of the factors which influenced the Court in In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990) to sustain the disqualification of a prosecutor from a prosecution which was related to matters on which the prosecutor had represented the defendant while in private practice, was a concern with regard to the adverse public perception of lawyers "switching sides."

The issue of whether an entire office should be disqualified because of an appearance of impropriety was first addressed in State v. Latique, 108 Ariz. 521, 502 P.2d 1340 (1972), which arose under the former Code of Professional Responsibility. In that case, the Court approved the disqualification of the entire Maricopa County Attorney's Office because a deputy public defender who had acted as the defendant's co-counsel had accepted a position as the chief deputy county attorney while the prosecution of the defendant was still pending, even though the individual involved took no part in the prosecution. The Court held in part that the "office would have to divorce itself from the prosecution . . . because the appearance of unfairness cannot be permitted." Id., 108 Ariz. at 523.

The issue arose again in Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734 (App. 1990), where the defendant sought to disqualify the entire Navajo County Attorney's Office after his defense counsel left to join that office. The County Attorney's Office relied heavily on the fact that the new Rules of Professional Conduct had been adopted since the decision in Latique, and they did not contain the prohibition on the appearance of impropriety on which the Latique Court had based its decision. The Court of Appeals disagreed and held that "the appearance of impropriety, which was so throughly discussed in Latique, still has a definite place in the balancing test the trial court must apply in resolving the question of disqualification." Id., 165 Ariz. at 199. The Court ruled that the trial court should consider the four factors articulated in Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984), and in addition whether there had been a showing of prejudice or the lack thereof. Applying all these considerations to the facts before it, the Court found that the disqualification of the entire Navajo County Attorney's Office was appropriate, in part because of the public perception of impropriety that would result were disqualification denied. But see State ex rel. Romley v. Gottsfield, 171 Ariz. 195, 829 P.2d 1241 (App. 1992), where precisely the opposite result was reached, under similar facts, with respect to the Maricopa County Attorney's Office.

The issue of the circumstances in which it might be appropriate to disqualify an entire office because of an "appearance of impropriety" was somewhat clarified in the decision in State ex rel. Romley v. Superior Court In and For Maricopa County, 184 Ariz. 223, 908 P.2d 37 (App. 1995), in which the trial court had disqualified the entire Maricopa County Attorney's Office from particular prosecutions on which one Deputy County Attorney had worked while in private practice based on the need to ensure the integrity of the prosecutions and to avoid the "appearance of impropriety." The Court of Appeals, in reversing, noted that the first step in the analysis should be whether the particular lawyer who had changed positions would be disqualified from participating in the prosecution. If the defendant carries the burden of showing that the individual in question personally and substantially participated in the matter involved, then the burden shifts to the prosecuting agency to show why vicarious disqualification should not be ordered. In assessing this issue, the trial court should take into account the policies underlying AZ-ER 1.11(c), the length and intensity of the prior representation, the nature of the crime, as well as the size of the prosecutor's office and whether it had put in place adequate mechanisms to screen the individual from any knowledge of, or involvement in, the prosecutions affected. See also State v. Sustaita, 183 Ariz. 240, 902 P.2d 1344 (App. 1995).

Needless to say, while there may be a need to show actual harm, such as the danger of disclosure of prior confidences, where disqualification is sought on the basis of an appearance of impropriety, no such showing is necessary where there has been an actual violation of an ethical rule. Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989). Where a violation of Rule ER 1.9(a) is shown, there is a presumption that confidences were divulged by the former client, and no need to show actual harm to the client to secure disqualification.

Even if disqualification is not ordered, continued representation may nevertheless violate the Arizona Rules of Professional Conduct. See Alexander v. Superior Court, 141 Ariz. 157, 166, 685 P.2d 1309, 1318 (1984); Nichols v. Elkins, 2 Ariz.App. 272, 48 P.2d 34 (1965). That will certainly be the case in transactional settings where the option of seeking disqualification is not available. The lawyer who accepts or persists in a representation that is impermissible under the standards of AZ-ER 1.9 subjects himself or herself to possible disciplinary action, and the imposition of one of the sanctions available to the disciplinary authorities, which include disbarment, suspension, probation, public censure or an informal reprimand, depending upon the gravity of the offense. See Rule 52(a), Rules of the Arizona Supreme Court. See also Matter of Piatt, 191 Ariz. 24, 951 P.2d 889 (1997); Matter of Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997); 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); In re Neville, 147 Ariz. 106, 708 P.2d 1297 (1985).

1.9:300   Client of Lawyer's Former Firm

When a lawyer moves from one firm to another, the new firm may not knowingly represent a person in the same or a substantially related matter, if the moving lawyer or the moving lawyer's former firm previously represented a client whose interests are materially adverse to those of that person, or if the moving lawyer acquired material information protected by AZ-ER 1.6 concerning the client represented by the lawyer's former firm. AZ-ER 1.9(b). Clients that the migratory lawyer represented at the former firm, or about whom the migratory lawyer acquired information protected by AZ-ER 1.6 while at the former firm, essentially become "former clients" of the firm to which the lawyer migrates. Thus, in State ex rel. Romley v. Superior Court In and For Maricopa County, 184 Ariz. 223, 908 P.2d 37 (App. 1995), the Court expressed the view that there was no reason to construe the prohibitions of AZ-ER 1.11 any differently from those of AZ-ER 1.9, so that whenever an attorney obtains confidential information from a client in a criminal case, that attorney's participation is "personal" and "substantial" for purposes of AZ-ER 1.11.

In Arizona Ethics Opinion No. 91-24, the Committee on the Rules of Professional Conduct ("the Committee") addressed an inquiry concerning the operations of the Volunteer Lawyers Project, which is a joint project of the Maricopa County Bar Association and Community Legal Services ("CLS"). The specific inquiry was whether it would be a conflict of interest for a lawyer participating in the Volunteer Lawyers Program to accept an assignment to represent a client whose interests were adverse to an individual who had previously applied to CLS for legal assistance and had completed the client intake questionnaire, which asked for the disclosure of financial information necessary to determine eligibility for assistance, or to an individual that had previously been represented by CLS. On the first question, the Committee ruled that there would be no conflict because the CLS intake interview process did not normally create an attorney-client relationship between CLS and the applicant. On the second issue, the Committee concluded that the Volunteer Lawyers Program and CLS would not be considered analogous to a single law firm, so that it would be permissible for the Volunteer Lawyers Program to accept and to refer to a volunteer lawyer a client whose interests were adverse to a person previously assisted by CLS, provided adequate safeguards were put in place to insure that no confidential information learned by CLS was shared with or disclosed to the volunteer lawyer.

In Arizona Ethics Opinion No. 97-09, the Committee held that an attorney who works on a contract basis for more than one law firm will be considered an associate of each firm for conflict of interests and confidentiality purposes unless: (1) there is a written agreement that limits the scope of the contract attorney's work to a particular client for a particular project, and (2) the contract attorney will not have general access to the firm's client files.

1.9:310      Removing Imputed Conflict of Migratory Lawyer

When a lawyer moves from one firm to another, the new firm may not knowingly represent a person in the same or a substantially related matter, if the moving lawyer or the moving lawyer's former firm previously represented a client whose interests are materially adverse and about whom the moving lawyer acquired material information protected by AZ-ER 1.6. AZ-ER 1.9(b). Prior to 2003, in that situation, building a so-called "ethical wall" around the lawyer, and screening that lawyer from any involvement in or knowledge of the matter that gives rise to the conflict, would not be effective to cure it. Towne Development of Chandler, Inc. v. Superior Court In and For Maricopa County, 173 Ariz. 364, 842 P.2d 1377 (App. 1992). The 2003 amendments added a new AZ-ER 1.10(d), which permits the new firm to avoid disqualification because of the migratory lawyer's former representation of an adverse party where (1) the matter does not involve a proceeding before a tribunal in which the personally disqualified lawyer had a substantial role, (2) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee from the matter, and (3) written notice is promptly given to any affected former client to enable it to ascertain whether there has been compliance with the provisions of the Rule.

1.9:320      Former Government Lawyer or Officer [see 1.11:200]

The foregoing rules apply to attorneys in private practice who move to another private firm. The special provisions of AZ-ER 1.11, and not the imputed disqualification rule of AZ-ER 1.10, apply when a government lawyer leaves the government to enter private practice. A former government lawyer may not represent a private client in connection with a matter in which the lawyer "personally and substantially participated" while employed by the government. AZ-ER 1.11(a). The former government lawyer's new firm, however, is not disqualified from such representation if (1) the former government lawyer is screened from any participation in the representation, (2) the former government lawyer does not share in any portion of the fees generated by the representation, and (3) written notice is provided to the lawyer's former agency employer so that it may verify compliance with the rule. Id. In addition, the former government lawyer would be precluded from using information relating to the former representation of the agency to its disadvantage, without the agency's consent. Arizona Ethics Opinion No. 02-05. Neither the former government lawyer nor the lawyer's present firm is prohibited from undertaking or continuing a representation if the former government lawyer was not involved to a material degree in the investigative or deliberative process regarding the transactions in question. AZ-ER 1.11(c)(1); Security General Life Insurance v. Superior Court, 149 Ariz. 332, 718 P.2d 985 (1986).

Similarly, a former government lawyer cannot represent a private client whose interests are adverse to a person concerning whom the lawyer actually acquired confidential government information while in the government's employ, in a mater in which the information could be used to the material disadvantage of that person. AZ-ER 1.11(b). The former government lawyer's firm, however, may undertake or continue such a representation if the former government lawyer is screened from any participation in the representation and does not share in the fees resulting from the representation. Id.

AZ-ER 1.11(c) imposes similar restrictions upon lawyers who migrate the other way, i.e., move from private practice to government service. Under AZ-ER 1.11(c)(1), after entering government service, the lawyer involved may not have any involvement in a matter "in which the lawyer participated personally and substantially while in private practice or nongovernmental employment," unless applicable law provides that nobody can act in the lawyer's place in the matter. A similar rule has also been applied by the Arizona authorities where a lawyer moves between two governmental offices which regularly represent clients whose interests conflict, e.g., a public defender's office and a prosecutor's office in the same county.

In In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990), the Respondent had been a contract public defender for the City of Kingman in 1982 and 1983 and, in that capacity, had defended a Mr. Otto on three separate occasions on charges of operating a motor vehicle while under the influence of alcohol. In 1986, while employed as a contract Deputy County Attorney in the Mohave County Attorney's Office, the Respondent represented the State in prosecuting two criminal charges against Mr. Otto, who was charged with a third DUI offense within a period of sixty (60) months which, upon conviction, leads to an enhanced sentence. The Court held that Respondent had engaged in representation that involved an impermissible conflict of interest under AZ-ER 1.9, because Respondent's interests as a prosecutor were materially adverse to the interests of Respondent's former client, Mr. Otto. The Court indicated that it was not necessary for Mr. Otto's prior DUI convictions to be an element of the subsequent offense to establish a "substantial relationship" between the former and the present engagements, because the subsequent prosecution of Otto by his former defense counsel created a substantial danger that confidential information revealed during the course of the former attorney/client relationship would be used against the former client.

A similar result was reached in State v. Hursey, 176 Ariz. 330, 861 P.2d 615 (1993), where a private attorney, Mr. Callahan, who had represented Hursey twice on earlier criminal charges, subsequently accepted a position as a Deputy Pinal County Attorney. Hursey was then arrested again, and Callahan was assigned to handle the prosecution. On the eve of trial, Callahan alleged the two prior criminal convictions, on which he had represented Hursey, for sentencing enhancement purposes. After Hursey was convicted, Callahan delegated to another Deputy County Attorney the task of proving the prior criminal convictions. The Court held that this was a conflict of interest on the part of Callahan because the two prior criminal convictions were "directly in issue" in the subsequent prosecution, and there was an unacceptable danger that Callahan would make use of confidential information he had gained from representing Hursey in private practice. The Court went on to note that the "appearance of impropriety" could not be alleviated by merely assigning part of the case to another prosecutor. See also Arizona Ethics Opinion No. 85-06, where the Committee held that a Deputy County Attorney, who had previously worked at the Public Defender's Office, where he had represented a particular criminal defendant and had discussed trial errors with a co-defendant's counsel, could not prosecute the co-defendants without their defense counsel's consent. On the other hand, in Arizona Ethics Opinion No. 89-04, the Committee ruled that a former Deputy County Attorney, who had taken a position as a Public Defender, could represent a defendant being prosecuted by his former employer, if the only knowledge he had gained about the client in his previous employment was that the defendant was being investigated or charged.

A separate issue, and one which the Arizona authorities have handled differently in the context of government agencies than for movement between private firms, is whether the personal disqualification of an individual prosecutor or public defender should be imputed to, and operate to disqualify, the entire office in which the disqualified attorney is employed. The issue of the circumstances in which it might be appropriate to disqualify an entire office because of a disqualifying conflict of interest of one of its members was definitively addressed in the decision in State ex rel. Romley v. Superior Court In and For Maricopa County, 184 Ariz. 223, 908 P.2d 37 (App. 1995), in which the trial court had disqualified the entire Maricopa County Attorney's Office from particular prosecutions on which one Deputy County Attorney had worked while in private practice based on the need to ensure the integrity of the prosecutions and to avoid the "appearance of impropriety." The Court of Appeals, in reversing, noted that the first step in the analysis should be whether the particular lawyer who had changed positions would be disqualified from participating in the prosecution. If the defendant carries the burden of showing that the individual in question personally and substantially participated in the matter involved, then the burden shifts to the prosecuting agency to show why vicarious disqualification should not be ordered. In assessing this issue, the trial court should take into account the policies underlying AZ-ER 1.11(c), the length and intensity of the prior representation, the nature of the crime, as well as the size of the prosecutor's office and whether it had put in place adequate mechanisms to screen the individual from any knowledge of, or involvement in, the prosecutions affected. See also State v. Sustaita, 183 Ariz. 240, 902 P.2d 1344 (App. 1995).

One of the significant aspects of these decisions is their implicit recognition of the principle that, in the context of a prosecutor's or public defender's office, screening the individual lawyer from knowledge of and participation in the matter that gives rise to the conflict may be effective to avoid disqualification of the entire office. The adoption of new AZ-ER 1.10(d) now codifies that principle for lawyers in private practice. (See discussion in Section 1.9:310, supra.)

In Arizona Ethics Opinion No. 86-08, the Committee on the Rules of Professional Conduct ("the Committee") held that it was not a conflict of interest for an attorney who served on a Board of Adjustment prior to becoming a lawyer, to represent clients in proceedings to set aside earlier decisions of the Board as arbitrary or illegal. In that same Opinion, however, the Committee ruled that an attorney who had been a clerk in the civil division of a County Attorney's office prior to admission to the bar should decline the representation of clients in cases seeking to set aside decisions of that County's Board of Adjustment, where the cases involved facts that the attorney had learned during the clerkship.

1.9:400   Use or Disclosure of Former Client's Confidences

Under AZ-ER 1.9(c), a lawyer may not use information relating to a former representation to the disadvantage of a former client, unless (1) AZ-ER 1.6 would permit the use of the information with respect to a current client, or (2) the information in question has become generally known. The Arizona authorities have tended to blend together the nominally separate prohibitions of this subpart of the Rule and the prohibitions set forth in AZ-ER 1.9(a), reasoning that the danger addressed by the prohibition of accepting representation adverse to the interests of a former client is that information learned during the representation of the former client may be used to that client's disadvantage, and that one of the aims of the Rule is to protect the former client from that occurring.

Thus, once it is determined that an attorney-client relationship was in fact formed between the attorney and the putative former client, AZ-ER 1.9(a) does not require that confidences and secrets in fact have been divulged in order for a conflict to exist or for disqualification to be proper. Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989). The Rule prohibits subsequent representation of an individual whose interests are substantially adverse to those of a former client. Id. The attorney is not given the option of showing that there is no danger of misuse of confidential information because the attorney never received any. Id. Because of the mandatory nature of AZ-ER 1.9(a), there is in effect a presumption that confidences were divulged by the former client. Id.

In addition, in Arizona, there are two alternative bases on which two matters can be found to be "substantially related"within the meaning of AZ-ER 1.9(a): (1) a significant factual nexus between them, or (2) a substantial danger that the former client's confidences may be used against that client in the subsequent engagement. Thus, in In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990), the Respondent had been a contract public defender for the City of Kingman in 1982 and 1983 and, in that capacity, had defended a Mr. Otto on three separate occasions on charges of operating a motor vehicle while under the influence of alcohol. In 1986, while employed as a contract Deputy County Attorney in the Mohave County Attorney's Office, the Respondent represented the State in prosecuting two criminal charges against Mr. Otto, who was charged with a third DUI offense within a period of sixty (60) months which, upon conviction, leads to an enhanced sentence. The Court held that Respondent had engaged in representation that involved an impermissible conflict of interest under AZ-ER 1.9, because Respondent's interests as a prosecutor were materially adverse to the interests of Respondent's former client, Mr. Otto. The Court indicated that it was not necessary for Mr. Otto's prior DUI convictions to be an element of the subsequent offense to establish a "substantial relationship" between the former and the present engagements, because the subsequent prosecution of Otto by his former defense counsel created a substantial danger that confidential information revealed during the course of the former attorney/client relationship would be used against the former client.

A similar result was reached in State v. Hursey, 176 Ariz. 330, 861 P.2d 615 (1993), where a private attorney, Mr. Callahan, who had represented Hursey twice on earlier criminal charges, subsequently accepted a position as a Deputy Pinal County Attorney. Hursey was then arrested again, and Callahan was assigned to handle the prosecution. On the eve of trial, Callahan alleged the two prior criminal convictions, on which he had represented Hursey, for sentencing enhancement purposes. After Hursey was convicted, Callahan delegated to another Deputy County Attorney the task of proving the prior criminal convictions. The Court held that this was a conflict of interest on the part of Callahan because the two prior criminal convictions were "directly in issue" in the subsequent prosecution, and there was an unacceptable danger that Callahan would make use of confidential information he had gained from representing Hursey in private practice. The Court went on to note that the "appearance of impropriety" could not be alleviated by merely assigning part of the case to another prosecutor. See also Arizona Ethics Opinion No. 85-06, where the Committee held that a Deputy County Attorney, who had previously worked at the Public Defender's Office, where he had represented a particular criminal defendant and had discussed trial errors with a co-defendant's counsel, could not prosecute the co-defendants without their defense counsel's consent. On the other hand, in Arizona Ethics Opinion No. 89-04, the Committee ruled that a former Deputy County Attorney, who had taken a position as a Public Defender, could represent a defendant being prosecuted by his former employer, if the only knowledge he had gained about the client in his previous employment was that the defendant was being investigated or charged.