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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of Arizona Rule

1.10:101      Model Rule Comparison

The 2003 amendments added new language to paragraph (a), providing that certain personal interest conflicts of a lawyer will not be imputed to other lawyers in the firm. Former AZ-ER 1.10(b) was moved to AZ-ER 1.9 as paragraph (b). The most significant substantive change was the adoption of new AZ-ER 1.10(d), which had been recommended by the ABA Ethics 2000 Commission, but was rejected by the ABA House of Delegates. This provision permits a firm who acquires a new lawyer to avoid disqualification from certain matters as to which that lawyer would have a conflict of interest by screening that lawyer, and providing notice of having done so to that lawyer's affected former client. The provision does not apply in situations where the matter involves a proceeding before a tribunal in which the new lawyer had a substantial role.

AZ-ER 1.10(a), (b), (c) and (e) are identical to MR 1.10(a), (b), (c) and (d), respectively. The "screening" provisions of AZ-ER 1.10(d) were not adopted as part of MR 1.10. This difference between the Rules does not carry forward to the accompanying Comments. In fact, the only difference between the Comments is that the last sentence of paragraph 3 of the Comment to AZ-ER 1.10, which specifies that the conflicts created by AZ-ER 1.8(l) are not imputed, does not appear in that paragraph of the Comment to MR 1.10.

1.10:102      Model Code Comparison

DR 5-105(D) of the Model Code of Professional Responsibility provided that "[i]f a lawyer is required to decline or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment." It did not contains provisions, such as AZ-ER 1.10(b) and (c) specifically addressing the lateral movement of lawyers between firms.

1.10.103      Definition of "Firm"

The prohibitions and restrictions imposed by AZ-ER 1.10 are all triggered by the association of lawyers in a "firm," or by a lawyer commencing or terminating an association with a "firm." The issue thus arises as to what types of associations between lawyers will constitute a "firm" for purposes of the Rule. In new AZ-ER 1.0(c), the terms "Firm" or "Law firm" are defined as denoting "a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. Whether government lawyers should be treated as a firm depends on the particular Rule involved and the specific facts of the situation." That definition is essentially repeated in the first paragraph of the Comment to AZ-ER 1.10. The Comment to AZ-ER 1.0(c) contains the following elaboration on the definition:

Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to confidential information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purposes of the rule that is involved. A group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to another.

With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

Comment, AZ-ER 1.0, 2, 3, 4.

The test that has been employed by the State Bar Committee on the Rules of Professional Conduct ("the Committee") is whether the organization or association operates similarly to a private law firm. Arizona Ethics Opinion No. 91-12. In that Opinion, the Committee addressed the situation where a contract between a County Attorney and a City Attorney authorized the City Attorney to handle some of the County Attorney's misdemeanor criminal cases, and the County Attorney had the power to unilaterally terminate the contract. The Committee concluded that, to the extent that the exercise of this power required the County Attorney to review any confidential information relating to the misdemeanor prosecutions performed by the City Attorney, then the County Attorney's Office and the City Attorney's Office would be viewed as a single "firm" for purposes of AZ-ER 1.10. Interestingly, the Committee also concluded that this type of contractual arrangement did not, in and of itself, prohibit the two offices from exchanging cases when conflicts arose, provided the contract did not require the County Attorney to learn confidential information concerning the City Attorney's cases.

In Arizona Ethics Opinion No. 93-06, the Committee concluded that a Public Defender's Office will ordinarily be considered a single "firm" for purposes of AZ-ER 1.10, and cannot split into two divisions in order to avoid operation of the imputed disqualification rule. That also appears to be the implicit assumption of the decisions in Maricopa County Public Defender's Office v. Superior Court, 187 Ariz. 162, 927 P.2d 822 (App. 1996), State v. Sustaita, 183 Ariz. 240, 902 P.2d 1344 (App. 1995), and Okeani v. Superior Court In and For Maricopa County, 178 Ariz. 180, 871 P.2d 727 (App. 1993). Similar treatment, i.e., as a single firm, has also been implicitly accorded to prosecutorial agencies. See State v. Hursey, 176 Ariz. 330, 861 P.2d 615 (1993); State v. Latique, 108 Ariz. 521, 502 P.2d 1340 (1972); State ex rel. Romley v. Superior Court In and For Maricopa County, 184 Ariz. 223, 908 P.2d 37 (App. 1995); State ex rel. Romley v. Gottsfield, 171 Ariz. 195, 829 P.2d 1241 (App. 1992); Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734 (App. 1990). A city attorney's office has also been viewed as a single "firm" for purposes of applying the conflict of interest rules. Arizona Ethics Opinion No. 80-12.

In Arizona Ethics Opinion No. 91-24, 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. The Committee has also cautioned lawyers to take into account potential conflicts of interest, and the imputed disqualification rules, when entering into "Of Counsel" relationships. Arizona Ethics Opinion No. 87-24.

In Arizona Ethics Opinion No. 2001-09, the Committee addressed an inquiry from a group of lawyers who shared an office suite, but were separate firms, who proposed to secure a common phone number and to hire a Spanish-speaking receptionist for communications with Spanish-speaking prospective clients. The receptionist would simply route calls to lawyers in the group according to practice area required. The Committee held that, if the receptionist's duties were limited to the routing of phone calls, and the group merely shared office space, then they would not constitute a firm for purposes of imputing conflicts of interest.

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

When lawyers are associated in a firm, none of them may knowingly represent a client when any of them practicing alone would be prohibited from doing so due to a conflict of interest, unless the affected client grants consent after consultation. AZ-ER 1.10(a) and (c); Matter of Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997). See also State v. Hansen, 146 Ariz. 226, 705 P.2d 466 (App. 1985).

Thus, in Okeani v. Superior Court In and For Maricopa County, 178 Ariz. 180, 871 P.2d 727 (App. 1993), the Court found that the Public Defender's Office's representation of a criminal defendant was "directly adverse" to its simultaneous representation of the alleged victim on an unrelated matter, because one of its duties might include attempting to impeach the credibility of the victim as a witness. The Court went on to note that the conflict could not be alleviated by the fact that the defendant and the victim would be represented by different lawyers in the Office because, under AZ-ER 1.10(a), while lawyers are associated in a firm, none of them can knowingly represent a client when any one of them practicing alone would be prohibited from doing so by AZ-ER 1.7.

Similarly, in Arizona Ethics Opinion No. 89-08, the Committee ruled that, when the head of an "alternate" public defender's office becomes the Director of the official Public Defender's Office, attorneys in the Public Defender's Office are precluded from representing defendants in cases that are the same or substantially related to cases handled by attorneys in the "alternate" public defender's office during the moving attorney's tenure there, if (1) the defendants represented by the Public Defender's Office have materially adverse interests to those represented by the "alternate" public defender's office, and (2) the moving attorney acquired material confidential information concerning their cases. The Committee has also held that a public defender must withdraw from the representation of a criminal defendant who has a "colorable" claim of ineffective assistance of counsel against another member of the office. Arizona Ethics Opinion No. 96-03.

The same rule has also been applied to private practitioners with a criminal practice. In Arizona Ethics Opinion No. 91-05, the Committee held that, where lawyer A plans to represent client D in a criminal proceeding and a partner in A's firm previously acted as counsel in a substantially related matter to W, a witness for the prosecution in the proceeding against D, representation of D would violate AZ-ER 1.10(a) unless W consents to it. On the other hand, in Arizona Ethics Opinion No. 87-20, the Committee concluded that partners and associates of an attorney who represents a judge in a civil matter may appear as defense counsel before that judge, provided the relationship is disclosed and permission is secured from the clients involved. In that same Opinion, however, the Committee held it would be improper for partners and associates of an attorney who is acting as a special city prosecutor to appear as criminal defense counsel in the same city court.

In Arizona Ethics Opinion No. 2001-12, the Committee addressed the issue of what ethical guidelines should be applied in a situation where an Assistant Public Defender was involved in a romantic relationship with a law enforcement officer who was frequently an arresting or investigating officer in cases involving clients of the Public Defender's Office. The Committee held that, in cases where the officer was a testifying witness, it would probably constitute a non-waivable conflict of interest for the Assistant Public Defender to represent the defendant, and disclosure of the relationship was mandatory. In cases where the officer was a testifying witness, but a different Public Defender was conducting the defense, whether the relationship would represent a material limitation on the ability to conduct the client's defense, and whether the relationship need be disclosed to the client would have to be evaluated on a case-by-case basis.

A similar question was addressed by the Committee in Arizona Ethics Opinion No. 2001-10, which involved a member of a prosecutor's office and a member of the public defender's office who were cohabiting and/or married. Again, the Committee concluded that, where the individuals involved in the relationship were working opposite each other on the same case, that would be permissible only if both attorneys believed that their respective representations would not be materially limited and both obtained informed consent from the clients involved. Where the individuals involved in the relationship were not opposite each other on the same case, whether the relationship should be disclosed, and whether it would have a material adverse effect on another lawyer's ability to represent a client, would have to be evaluated on a case-by-case basis.

In both the foregoing Opinions, the Committee noted that the conflict presented was personal to the lawyers involved in the relationship, and would not be automatically imputed to other members of their offices.

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), 1.10(b). Formerly, 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). See also Smart Industries Corp., Mfg. v. Superior Court In and For County of Yuma, 179 Ariz. 141, 876 P.2d 1176 (App. 1994). That rule has now been changed by the adoption of the screening provisions of AZ-ER 1.10(d), discussed in Section 1.10:300, infra.

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 one 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. Lawyers have also been cautioned to take into account potential conflicts of interest and the imputed disqualification rules when entering into "Of Counsel" relationships. Arizona Ethics Opinion No. 87-24.

In Arizona Ethics Opinion No. 91-24, 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. 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 whom the lawyer had previously interviewed to determine eligibility for assistance or to an individual that had previously been represented by Community Legal Services. On the first question, the Committee ruled that there would be no conflict because the Volunteer Lawyers Program intake interview process did not normally create an attorney-client relationship between the lawyer conducting the interview and the applicant. On the second issue, the Committee concluded that the Volunteer Lawyers Program and Community Legal Services 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 Community Legal Services, provided adequate safeguards were put in place to insure that no confidential information learned by Community Legal Services was shared with or disclosed to the volunteer lawyer.

The imputed disqualification rule is not new to the Rules of Professional Conduct, but was inherited from former DR 5-105(D) of the Model Rules of Professional Responsibility. Thus, in Arizona Ethics Opinion No. 83-21, the Committee ruled that an associate in a firm that is hired to handle the defense of a client may not, during the pendency of the matter, join the firm that represents the plaintiff, without the fully informed consent of the client being defended. Similarly, in Arizona Ethics Opinion No. 82-14, the Committee concluded that a firm in which a city councilperson was an associate could not represent the plaintiff in a personal injury action against the city, and members of that firm could not practice in that city's Magistrate Court. On the other hand, in Arizona Ethics Opinion No. 84-17, the Committee held that members of a law firm would not be vicariously disqualified from continued representation of a client, when the firm hired a former associate of a firm representing a person with interests adverse to that client, if the associate did not participate in the representation of the client's adversary and had no knowledge of or access to information relating to the adversary's case.

The 2003 amendments changed the scope of the imputation of conflicts rules slightly by adding language to AZ-ER 1.10(a) providing that an otherwise imputed prohibition on representation of a client due to one firm lawyer's conflict of interest would apply where it "is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." As explained in the Comment to the Rule:

The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, for example, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm are reasonably likely to be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm. A disqualification arising under ER 1.8(l) from a family or cohabiting relationship is personal and ordinarily is not imputed to other lawyers with whom the lawyers are associated.

Comment, AZ-ER 1.10, 3. This "exemption" from imputation for "personal conflicts" is, of course, subject to the specific provision in AZ-ER 1.8 that the prohibitions set forth in paragraphs (a) through (i) of that Rule that apply to any lawyer in a firm apply to all of them. AZ-ER 1.8(k).

The foregoing rules apply to attorneys in private practice. The special provisions of AZ-ER 1.11, and not the imputed disqualification rule of 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. 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. Rule 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 matter in which the information could be used to the material disadvantage of that person. Rule 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.

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); 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). But see State v. Hursey, supra.

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 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." 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 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. That principle has now been codified for lawyers in private practice by the adoption of new AZ-ER 1.10(d).

In Arizona Ethics Opinion No. 2001-09, the Committee addressed an inquiry from a group of lawyers who shared an office suite, but were separate firms, and who proposed to secure a common phone number and a Spanish-speaking receptionist for communications with Spanish-speaking prospective clients. The receptionist would simply route calls to lawyers in the group depending upon their practice area. The Committee held that, if the receptionist's duties were thus confined, and the group merely shared office space, then they would not be considered a firm and conflicts of interest would not be imputed from one lawyer to other members of the group.

1.10:300   Removing Imputation by Screening

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), 1.10(b). Formerly, 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). See also Smart Industries Corp., Mfg. v. Superior Court In and For County of Yuma, 179 Ariz. 141, 876 P.2d 1176 (App. 1994).

The 2003 amendments changed this result through the adoption of AZ-ER 1.10(d), a provision recommended by the ABA Ethics 2000 Commission, but rejected by the House of Delegates. AZ-ER 1.10(d) provides that a firm can avoid the imputed disqualification that would ordinarily result from the association with the firm of a lawyer with a conflict of interest in a matter the firm is handling, if: (1) "the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;" (2) "written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule"; and, (3) the matter does not involve a proceeding before a tribunal in which the personally disqualified lawyer had a substantial role." This is at least analogous to the rule that has pertained when government lawyers enter private practice with a firm handling a matter in which the agency with which the lawyer was associated is an adverse party. See AZ-ER 1.11(a). "Screened" is defined, in new AZ-ER 1.0(k), as denoting "the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or under other law." The Comment to this definition stresses that: "[I]n order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening." Comment, AZ-ER 1.0, 10.

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.

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. That principle has now been codified for lawyers in private practice by the adoption of AZ-ER 1.10(d).

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

AZ-ER 1.10(b) provides that, when a lawyer has terminated an association with a firm, the firm may thereafter represent clients whose interests are materially adverse to those of a client who was represented by the departed lawyer while at the firm, unless: (1) the matter involved is the same or substantially related to the matter in which the formerly associated lawyer represented the client, and (2) any lawyer remaining in the firm has information protected by ER 1.6 and 1.9(c) that is material to the matter. In Arizona Ethics Opinion No. 95-06, the Committee on the Rules of Professional Conduct concluded that, once a lawyer who has a conflict leaves a firm, the remaining members of the firm are no longer subject to imputed disqualification if none of the remaining lawyers possess any confidential information related to the former client of the departed lawyer.

1.10:500   Client Consent

AZ-ER 1.10(d) permits the affected client to waive the imputed disqualification mandated by the Rule "under the conditions stated in ER 1.7." AZ-ER 1.7(b) requires the "informed consent, confirmed in writing" of the affected clients for a lawyer to continue with a representation that constitutes an actual or potential conflict of interest. ""Informed consent" is defined, in new AZ-ER 1.0(e), as denoting "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks or and reasonably alternatives to the proposed course of conduct." In the context of the conflict of interest rules:

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 may 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). See also Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994). 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).