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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.

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Arizona Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Arizona Rule

3.1:101      Model Rule Comparison

The 2003 amendment added references to both "good faith" and "law and fact" to make clear that an objective standard controls the propriety of an argument for an extension, modification or reversal of existing law. A sentence was added to paragraph 2 of the Comment to clarify that a lawyer has an ethical obligation to independently verify the facts and applicable law before advancing an argument that the client desires to make. A new paragraph 3 of the Comment provides that a lawyer for a criminal defendant can conduct the defense so as to require the prosecution to prove all of the elements of the offense charged, but adds the caveat that the lawyer may not make frivolous motions. Finally, a new paragraph 4 of the Comment further explains that a lawyer's obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal case to the assistance of counsel in presenting an appeal that would otherwise be prohibited by the Rule.

The language of AZ-ER 3.1 and MR 3.1 differs, although the intent of the two Rules is substantially the same. AZ-ER 3.1 requires that there be a "good faith" and nonfrivolous basis in law and fact for a position asserted in a tribunal. MR 3.1 does not explicitly contain such a "good faith" requirement. This difference is also reflected in paragraph 2 of the Comments to the two Rules.

The Comment to MR 3.1 also does not contain paragraph 3 of the Comment to AZ-ER 3.1 concerning the obligation of defense counsel in criminal cases not to file frivolous motions. Finally, paragraph 3 of the Comment to MR 3.1 provides that the obligations imposed by the Rule are subordinate to federal and state constitutional law concerning assisting a criminal defendant in presenting a "claim or contention." The corresponding paragraph in the Comment to AZ-ER 3.1, paragraph 4, is limited to assistance in the presentation of appeals.

3.1:102      Model Code Comparison

AZ-ER 3.1 is, with three qualifications, essentially the same as DR 7-102(A)(1), which provided that a lawyer may not "file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." The first qualification is that the test of improper conduct was changed from "merely to harass or maliciously injure another" to the requirement that there be a basis for the litigation measure that is "not frivolous," which includes the concept, stated in former DR 7-102(A)(2), that a lawyer may advance a claim or defense unwarranted by existing law if "it can be supported by good faith argument for an extension, modification, or reversal of existing law." Secondly, the test in AZ-ER 3.1 is an objective one, as distinguished from the essentially subjective "knows or when it is obvious" test of DR 7-102(A)(1). Finally, AZ-ER 3.1 has an exception that in a criminal case, or a case in which incarceration of the client may result, the lawyer may put the prosecution to its proof even if there is no non-frivolous basis for a defense.

3.1:200   Non-Meritorious Assertions in Litigation

AZ-ER 3.1 essentially provides that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue in that proceeding, unless there is a good faith basis for doing so. "Good faith" in this context may include a good faith and nonfrivolous basis for seeking the extension, modification or reversal of existing law. The Rule distinguishes the situation of the lawyer who is defending a client on criminal charges, or in any other proceeding that could result in the client's incarceration (e.g., juvenile proceedings). In those situations, the lawyer may defend the proceeding so as to require that every element of the case be established, i.e., to put the prosecution to its proof. Paragraph 3 of the Comment to the Rule, however, makes clear that this does not authorize criminal defense counsel to file frivolous motions.

The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and is never static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith and nonfrivolous arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is not in good faith, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person, and is frivolous if the lawyer is unable either to make a nonfrivolous argument on the merits of the action taken or a good faith and nonfrivolous argument for an extension, modification or reversal of existing law.

Comment, AZ-ER 3.1, šš 1, 2. Failing to comply with this Rule does subject the offending lawyer to possible disciplinary sanctions, as well as sanctions that might be imposed under applicable procedural rules. See Matter of Wurtz, 177 Ariz. 586, 870 P.2d 404 (1994). See also discussion in Section 3.1:300, infra.

In Matter of Levine, 174 Ariz. 146, 847 P.2d 1093 (1993), the Supreme Court held that the test for compliance with AZ-ER 3.1 has both an objective and a subjective component. Levine had been charged with fourteen counts of unethical conduct arising from numerous suits that he had instituted and maintained, either personally or on behalf of clients, against his former law partners and others. The Bar alleged that Levine's participation in the suits was frivolous, without a good faith basis to extend, modify or reverse existing law, and was without substantial purpose other than to embarrass, delay or burden third parties, in violation of both AZ-ER 3.1 and AZ-ER 4.4. The Disciplinary Commission agreed and ordered Levine suspended from the practice of law for three years. One of the arguments Levine made on appeal to the Supreme Court was that the Disciplinary Commission had improperly used a subjective standard rather than an objective standard in testing the reasonableness of the legal theories he had advanced in the actions in question. The Court rejected that argument:

Thus, although the objective reasonableness of a legal claim is the standard to determine whether it is frivolous under ER 3.1, the rule also requires a subjective good faith motive by the client and a subjective good faith argument by the lawyer . . . Therefore, if an improper motive or a bad faith argument exists, respondent will not escape ethical responsibility for bringing a legal claim that may otherwise meet the objective test of a nonfrivolous claim.

174 Ariz. at 153, 847 P.2d at 1100 (citations omitted). The Court noted that, in the context of awarding civil sanctions for the filing of frivolous appeals under Rule 25 of the Arizona Rules of Civil Appellate Procedure, and under Rule 11 of the Arizona Rules of Civil Procedure, an objective definition applies only when there is no allegation and proof of an improper subjective motive, concluding:

Thus, a common theme in both our procedural and ethical rules is the examination of whether a claim is frivolous by considering both the objective legal reasonableness of the theory and the subjective motive of the proponent of the claim.

174 Ariz. at 153, 847 P.2d at 1100. Disagreeing with certain of the Commission's conclusions with respect to certain of the actions or proceedings Levine had instituted, the Court reduced the sanction against him to a suspension of six months, followed by a probationary period of two years. Interestingly, in one instance, the Court found that Levine had violated AZ-ER 3.1, not by filing a frivolous claim, but by delaying for months in dismissing an action that he had filed against one lawyer after he had acknowledged that there was no viable claim against that lawyer.

In Matter of Bowen, 178 Ariz. 283, 872 P.2d 1235 (1994), the Supreme Court approved an Order of the Disciplinary Commission that Bowen be suspended from the practice of law for one year for violations of several ethical rules, including AZ-ER 3.1. The AZ-ER 3.1 violation arose out of Mr. Bowen's representation of a partnership and one of its partners in a suit filed against them by one of their suppliers to collect a debt. Bowen filed an answer denying that his clients were indebted to the supplier in any amount, even though his clients had advised him that the debts in question were valid, due and owing. Bowen then filed a Chapter 13 bankruptcy petition on behalf of the partnership, to secure a stay of the collection action, even though he knew that partnerships were ineligible for relief under that Chapter of the Bankruptcy Code. The Bankruptcy Court dismissed the Petition for just that reason, and Bowen filed a motion for reconsideration. The Court agreed with the Disciplinary Commission that these series of actions constituted a violation of AZ-ER 3.1:

In the matter involving C and D, the record clearly reveals that respondent knowingly filed a false statement in the answer to the complaint. The record also demonstrates that respondent engaged in repeated stalling tactics. In both bankruptcy proceedings, respondent filed meritless motions to reconsider the bankruptcy court's well-grounded rulings (i.e., the court dismissed the partnership's Chapter 13 petition because partnerships are not eligible for relief under this chapter). In all, it is evident that the respondent engaged in several litigious maneuvers with the sole purpose of causing unnecessary delay and expense.

178 Ariz. at 286, 872 P.2d at 1235. That very same respondent had previously been publicly censured for a violation of one of the predecessors of AZ-ER 3.1, former DR 7-102(A)(2) of the Code of Professional Responsibility, by filing a series of lis pendens in collection actions which did not involve or affect the title to real property. Matter of Bowen, 160 Ariz. 558, 774 P.2d 1348 (1989). See also Matter of Bowen, 144 Ariz. 92, 695 P.2d 1130 (1985).

In Matter of Feeley, 176 Ariz. 196, 859 P.2d 1329 (1993), the Supreme Court affirmed a Disciplinary Commission Order that Feeley be disbarred for a variety of ethical violations, including violations of AZ-ER 3.1, that had been committed in four separate engagements. The violation of AZ-ER 3.1 arose from the fact that Feeley had filed a suit for damages arising out of the burglary of his client's residence, in which he alleged that the burglary was the result of a rotted window frame, even though he had at the time the action was filed a copy of the police report and a deposition of the investigating officer, both of which indicated that the burglary had gained entry by smashing the window, and not as the result of the rotted window frame.

In Matter of Brown, 175 Ariz. 134, 854 P.2d 768 (1993), the Supreme Court summarily affirmed an Order of the Disciplinary Commission suspending Brown for six months, to be followed by a two year period of probation, for a variety of ethical violations, including violations of AZ-ER 3.1. The violation of AZ-ER 3.1 grew out of Brown's acceptance of an engagement by a prison inmate to secure a reclassification of his inmate status. Brown accepted a $1,500 retainer, but did nothing. One year after he was retained, Brown told the prisoner client that he would immediately file a special action on his behalf, even Brown did not believe that was a worthwhile remedy. The special action was not filed for yet another year, however, and only after Brown learned that his client had filed a complaint concerning his conduct with the State Bar. The Court in which the special action had been filed found that it was frivolous and imposed a monetary sanction against Brown.

In Matter of Mulhall, 170 Ariz. 152, 822 P.2d 947 (1992), Mulhall was charged with fifteen counts of unethical conduct, including violations of AZ-ER 3.1, which occurred over a three year period and caused injury to three separate sets of clients. The alleged violation of AZ-ER 3.1 arose out of a legal malpractice action that had been filed against Mulhall by a business and its owner, whom Mulhall had previously represented. Mulhall filed a counterclaim, alleging that the business owner had committed libel and slander by instituting the action. The Bar and the Disciplinary Commission found, and the Supreme Court agreed, that the counterclaim had been filed in bad faith. For this and many other ethical violations, Mulhall was disbarred. In Matter of Wetzel, 143 Ariz. 35, 691 P.2d 1063 (1984), the Supreme Court ordered the disbarment of Wetzel for a number of ethical transgressions, including what the Court had characterized as persistence in filing unfounded claims in order to harass and extort others, and engaging in deceitful conduct with his colleagues and the courts. Finally, in In re Hoover, 46 Ariz. 24, 46 P.2d 647 (1935), the Court ordered a sixty suspension of an attorney for, among other things, filing a divorce action in which it was falsely alleged that his client had satisfied the statutory residence requirements.

Matter of Ronwin, 139 Ariz. 576, 680 P.2d 107 (1983) represents an interesting application of DR 7-102(A) of the former Code of Professional Responsibility, one of the predecessors to AZ-ER 3.1. This was an original proceeding in which the Supreme Court took jurisdiction over the most recent of Mr. Ronwin's many applications for admission to the bar. Ronwin's previous applications had been denied because various Committees and individuals had determined that Ronwin was not mentally fit to practice law. Ronwin had responded by filing a series of civil rights and other damages actions against various people who had been involved in these prior rejections of his applications for admission, including one against a law student who had authored a law review note about the situation. The Court observed that, under DR 7-102(A)(1), a lawyer may not file actions when it was obvious that the action would merely serve to harass or maliciously another. The Court found that several of the actions previously filed by Ronwin met that standard, and that a violation as a pro se litigant of the requirements of DR 7-102(A) constituted grounds for a denial of admission to the Bar.

AZ-ER 3.1 has not been a frequent subject of Opinions issued by the Committee on the Rules of Professional Conduct ("the Committee"). In Arizona Ethics Opinion No. 91-03, the Committee considered an inquiry as to the propriety of the practice of a lawyer preparing pleadings and rendering advice to clients who would file the pleadings and pursue the cases as pro per litigants. The Committee concluded that is was proper for an attorney to represent clients on such a limited basis, so long as: (1) the client consents to the limitation on the scope of the representation after consultation; (2) the scope of the representation is not so limited as to cause the attorney to violate any of the Rules of Professional Conduct or other law; and, (3) the attorney does not advise the client to do something that the attorney would be prohibited from doing. In Arizona Ethics Opinion No. 86-02, the Committee considered an inquiry from an attorney who had been appointed by the Court to act as counsel for a juvenile criminal defendant. The inquiring attorney stated that the juvenile's parents were attempting to intervene in the legal proceedings by filing meritless pleadings in both the Juvenile Court and the Arizona Supreme Court. The Committee concluded that the attorney had no obligation, and should not attempt, to have the pleadings quashed.

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

  • Primary Arizona References: AZ-ER 3.1 and accompanying Comment; Rules 11 and 37, Ariz.R.Civ.P.; A.R.S. §§ 12-349, 350
  • Background References: ABA Model Rule 3.1, Other Jurisdictions
  • Commentary: ABA/BNA § 61:151, ALI-LGL § 170, Wolfram § 11.2, McAuliffe, Arizona Civil Rules Handbook - 1999 Edition (West Group 1999) pp. 114-117, 165, 326-333, 710

The most frequently invoked basis for the assessment of sanctions for abusive litigation practice is Rule 11(a) of the Arizona Rules of Civil Procedure (hereinafter "Ariz.R.Civ.P."). Rule 11 imposes upon attorneys and unrepresented parties the responsibility to insure that assertions made, and positions taken, in pleadings are done so in good faith and not for some improper purpose. The Rule's requirements apply not just to pleadings as defined in Rule 7(a), but to motions and other papers that are filed as well. It is intended to discourage frivolous and/or legally unreasonable claims, or pleadings that are without factual foundation, even though not filed in subjective faith. It has been held that the obligations imposed upon attorneys by Rule 11(a) are at least analogous to those imposed by AZ-ER 3.1. A common theme in both is the need for an examination of whether a claim is frivolous by considering both the objective legal reasonableness of the theory or claim and the subjective motive of the proponent of the claim. Matter of Levine, 174 Ariz. 146, 847 P.2d 1093 (1993); Hill v. Chubb Life American Ins. Co., 178 Ariz. 37, 870 P.2d 1133 (App. 1993), vacated on other grounds 182 Ariz. 158, 894 P.2d 701 (1995).

A nominally separate basis for awarding sanctions for the bringing of meritless claims is provided by A.R.S. § 12-349. That statute provides that, in any civil action commenced in a court of record, the court shall assess reasonable attorney's fees and, at the court's discretion, double damages of not to exceed five thousand dollars ($5,000) against any attorney or party, including the state or any political subdivision, who is found to have done any of the following:

1. Brings or defends a claim without substantial justification;

2. Brings or defends a claim solely or primarily for delay or harassment.

3. Unreasonably expands or delays the proceeding.

4. Engages in abuse of discovery.

"Without substantial justification" is defined in the statute to mean that the claim or defense constitutes harassment, is groundless and is not made in good faith. A.R.S. § 12-349(F). Subpart (C) of the statute also provides that attorney's fees may not be assessed if, after filing an action, a voluntary dismissal is filed for any claim or defense within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that the claim or defense was without substantial justification.

A.R.S. § 12-350 provides that, in awarding attorney's fees under A.R.S. § 12-349, the Court must set forth the specific reasons for the award, and may take into account the following factors in determining whether such an award is warranted:

1. The extent of any effort made to determine the validity of a claim before the claim was asserted;

2. The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid;

3. The availability of facts to assist a party in determining the validity of a claim or defense;

4. The relative financial positions of the parties involved;

5. Whether the action was prosecuted, in whole or in part, in bad faith;

6. Whether issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict;

7. The extent to which the party prevailed with respect to the amount and number of claims in controversy; and

8. The amount and conditions of any offer of judgment or settlement as related to the amount and conditions of the ultimate relief granted by the court.

It has been held that the same issues and concerns are involved, where a party requests sanctions under A.R.S. § 12-349, as where the request is based upon Rule 11, Ariz.R.Civ.P. Harris v. Reserve Life Insurance Company, 158 Ariz. 380, 762 P.2d 1334 (App. 1988).

Rule 11(a) requires that every pleading, motion and other paper (which includes discovery papers) be signed by at least one attorney of record for the party on whose behalf it is submitted, or by the unrepresented party. Under the Rule, as amended in 1984, the signature constitutes a certification by the party or attorney that the pleading "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose . . ." Before signing a pleading, counsel is required to make reasonable efforts to assure that the matters asserted are not illusory, frivolous, unnecessary or insubstantial. James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Protection, 177 Ariz. 316, 868 P.2d 329 (App. 1993). In addition, as the facts of a case develop, counsel is under a continuing obligation to assess the validity of claims asserted. Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221, 866 P.2d 889 (App. 1993); Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 745 P.2d 617 (App. 1987).

The "reasonable efforts" required in any specific instance will depend upon a variety of factors, including the facts already known to or readily ascertainable by counsel, the amount of time available for investigation, the need to rely upon others, including the client, for information, and the plausibility of the claim itself. Boone v. Superior Court In and For Maricopa County, 145 Ariz. 235, 700 P.2d 1335 (1985). The test is ordinarily an objective one of reasonableness, unless there is an allegation and proof of the bringing of a non-frivolous claim for an improper motive. Matter of Levine, 174 Ariz. 146, 847 P.2d 1093 (1993); Hill v. Chubb Life American Ins. Co., 178 Ariz. 37, 870 P.2d 1133 (App. 1993), vacated on other grounds 182 Ariz. 158, 894 P.2d 701 (1995). The filing of an action is not frivolous simply because counsel has not first substantiated the facts or expects to develop critical evidence through discovery. Smith v. Lucia, 173 Ariz. 200, 842 P.2d 1303 (App. 1992); Roberts v. Kino Community Hospital, 159 Ariz. 333, 767 P.2d 56 (App. 1988). Similarly, the fact that summary judgment has been granted against a party is not dispositive of the issue of whether sanctions against that party's attorney are warranted under Rule 11. Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 771 P.2d 469 (App. 1989).

The trial court has broad discretion in fashioning an appropriate sanction where a violation of Rule 11 is found, including an award of expenses and attorneys' fees. The Rule's prior specific reference to the striking of pleadings was eliminated solely because it was deemed unnecessary, and does not signify that the sanction of striking pleadings may not be employed. The sanctions imposed, however, must bear some relationship to the violation and, where a monetary sanction is imposed, it should be related to the expenses directly caused by the sanctioned conduct. Taliaferro v. Taliaferro, 188 Ariz. 333, 935 P.2d 911 (App. 1996).

An attorney subjected to an award of sanctions under Rule 11 has standing to challenge that award on appeal, even though the attorney is technically not a party to the action. Wieman v. Roysden, 166 Ariz. 281, 802 P.2d 432 (App. 1990); Barrow v. Arizona Board of Regents, 158 Ariz. 71, 761 P.2d 145 (App. 1988); Abril v. Harris, 157 Ariz. 78, 754 P.2d 1353 (App. 1987). All aspects of orders imposing sanctions under Rule 11 are reviewed solely for abuse of the trial court's discretion. James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Protection, 177 Ariz. 316, 868 P.2d 329 (App. 1993). The trial court's personal contact with the attorneys involved will entitle its views to some deference. Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 771 P.2d 469 (App. 1989). In addition, the evidence will be viewed in a manner most favorable to sustaining the award. Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 812 P.2d 1096 (App. 1991).

The availability of Rule 11 does not operate to deprive the trial court of its inherent power to impose sanctions for attorney misconduct before the Court and/or violations of the rules of procedure. Precision Components, Inc. v. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 880 P.2d 1098 (App. 1993). That power arises from, and is governed by, the control necessarily vested in courts to manage their own affairs so as to accomplish the orderly and expeditious disposition of disputes. Hmielewski v. Maricopa County, 192 Ariz. 1, 960 P.2d 47 (App. 1997). The imposition of sanctions under the Court's inherent power to do so should ordinarily be preceded by some form of notice and opportunity to be heard on the issue, but that may consist of the trial court explaining to the attorneys the reason for the proposed sanctions and the form they will take, and providing an opportunity to argue against them. Id. Whether an additional hearing on sanctions should be conducted depends on the nature of the case, and the factors to be considered include (1) the general circumstances of the violation, (2) the type and severity of the sanctions being considered, (3) the trial court's degree of participation in the proceedings and knowledge of the underlying facts, and (4) the need, if any, for further inquiry. Id.

The Arizona Rules of Civil Procedure also contain several provisions authorizing the imposition of sanctions for disclosure or discovery failures and/or abuses. The mildest of the sanctions that can be assessed is an award of the costs and expenses, including reasonable attorneys' fees, incurred by the successful party on a motion to compel discovery and/or disclosure. Rule 37(a)(4), Ariz. R. Civ. P. This sanction is available where one of the following failures to make discovery and/or disclosure is involved:

1. A deponent fails to answer a question propounded or submitted at a deposition, or gives an answer that is evasive or incomplete.

2. A corporation or other entity fails to designate a representative to testify on its behalf at a deposition.

3. A party fails to answer an interrogatory propounded under Rule 33.

4. A party, in response to a request for production or inspection under Rule 34, Ariz.R.Civ.P., fails to state that inspection or production will be permitted, or fails to permit inspection or production as requested.

5. A party fails to make disclosure of the matters required to be disclosed by Rule 26.1, Ariz.R.Civ.P., or makes a disclosure that is evasive or incomplete.

Sanctions for a failure to make requested discovery or the disclosures required by Rule 26.1, Ariz.R.Civ.P. are permitted if a motion to compel disclosure is granted, or if the requested discovery or disclosure is provided after the motion is filed but before a ruling is secured, unless the Court finds that the moving party did not make a good faith effort to obtain the discovery or disclosure sought prior to resorting to a motion. Sanctions may also include an award of expenses and attorneys' fees, unless the Court finds that the noncompliance was substantially justified, or that other circumstances make an award of expenses and fees unjust. Scottsdale Princess Partnership v. Maricopa County, 185 Ariz. 368, 916 P.2d 1084 (App. 1995).

In addition, under the Rule as amended, where a failure to disclose, or a misleading disclosure, results in a party being required to engage in investigation or to conduct discovery that should not have been unnecessary, the Court must direct the offending party to reimburse the other party for the expenses thereby incurred, including attorneys' fees. Unless the failure to disclose is found by the trial judge to be harmless, a party failing to make a timely disclosure of evidence may not use that evidence at trial, at any hearing, or in connection with a motion, except with leave of court for good cause shown. Allstate Insurance Co. v. O'Toole, 182 Ariz. 284, 896 P.2d 254 (1995); Zuern v. Ford Motor Company, 188 Ariz. 486, 937 P.2d 676 (App. 1996), motion for depublication denied 190 Ariz. 574, 951 P.2d 449 (1997); Perguson v. Tamis, 188 Ariz. 425, 937 P.2d 347 (App. 1996). In addition, Rule 37(d), Ariz.R.Civ.P. specifically states that a knowing failure to disclose damaging or unfavorable evidence can be grounds for the imposition of more serious sanctions, up to and including dismissal of a claim or defense.

Rule 37(b), Ariz.R.Civ.P. authorizes an additional array of sanctions which may be applied where a party has failed to comply with a previous order compelling discovery. In that circumstance, the Court is authorized to do one or more of the following:

1) Enter an order that the matters which were the subject of the prior order shall be deemed established against the recalcitrant party's position.

2) Enter an order precluding the recalcitrant party from asserting certain claims or defenses or introducing evidence with respect to them.

3) Enter an order striking the pleadings or portions thereof of the recalcitrant party, or dismissing the action or portions thereof, or entering the default of the recalcitrant party.

4) Finding the recalcitrant party in contempt of court.

The contempt sanction may not be employed for failure to obey an order to submit to a physical or mental examination. An award of sanctions under Rule 37(b) requires that there have been a violation of a prior order compelling discovery. The very same sanctions, however, can be awarded under Rule 37(f), even where there has been no prior order or disobedience thereof, in the following instances:

1) Where a party, or a representative of a corporate party, fails to appear for a properly noticed deposition;

2) Where a party fails to serve answers or objections to interrogatories under Rule 33, Ariz.R.Civ.P.; and

3) Where a party fails to serve a written response to a properly served Rule 34 request for production or inspection.

See Verde Ditch Company v. James, 157 Ariz. 369, 758 P.2d 144 (App. 1988).

Finally, Rule 37(e), Ariz.R.Civ.P. deals specifically with the failure of a party to admit matters made the subject of a request for admissions under Rule 36. If the party seeking the admission subsequently proves the truth of the matter in question, the Court can award that party the expenses incurred in making that proof, including reasonable attorneys' fees, unless the Court finds that the request was objectionable, the matter was not of substantial importance, the party in question had good reason to believe they would prevail on the issue, or there were other good grounds for the failure to admit. West v. Sundance Development Company, 169 Ariz. 579, 821 P.2d 240 (App. 1991); Aetna Loan Co. v. Apache Trailer Sales, 1 Ariz.App. 322, 402 P.2d 580 (1965).

In the discovery context, the issue of what sanction, if any, to apply in any given circumstance is one committed to the trial court's discretion. Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982); AG Rancho Equipment Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Birds Intern. Corp. v. Arizona Maintenance Co., 135 Ariz. 545, 662 P.2d 1052 (App. 1983). Any sanction that is imposed, however, must be "appropriate" and should bear some relationship to the nature of the violation and the harm that it caused. Taliaferro v. Taliaferro, 188 Ariz. 333, 935 P.2d 911 (App. 1996). Dismissal of the action, or the entry of the party's default, however, is a very drastic sanction that should only be invoked in extreme circumstances. Austin v. City of Scottsdale, 140 Ariz. 579, 684 P.2d 151 (1984); Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App. 1997); Lenze v. Synthes, Ltd., 160 Ariz. 302, 772 P.2d 1155 (App. 1989). Generally, dismissal of an action, or the entry of a default, is warranted only where the party personally shares complicity in the abusive behavior and, even then, other, less severe sanctions should be considered. Groat v. Equity American Insurance Co., 180 Ariz. 342, 884 P.2d 228 (App. 1994); Nesmith v. Superior Court, 164 Ariz. 70, 790 P.2d 768 (App. 1990). If there is a question as to whether the misconduct involved was that of the party or counsel, a hearing should be conducted to resolve it. AG Rancho Equipment Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Weaver v. Synthes, Ltd., 162 Ariz. 442, 784 P.2d 268 (App. 1989).

Finally, there are a number of other instances in which sanctions may be awarded against counsel during the course of litigation. For example, Rule 16(f), Ariz.R.Civ.P. authorizes the imposition of sanctions for failure to appear at a pretrial conference, failure to be substantially prepared to participate in a pretrial conference, failure to participate in good faith at a pretrial conference, and/or failure to comply with a pretrial or scheduling order. These sanctions provisions are also made specifically applicable, by Rule VI(e) of the Uniform Rules of Practice of the Superior Court, to settlement conferences.

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Arizona case law has for some time recognized that an attorney may be the subject of a suit for either malicious prosecution or abuse of process brought by a plaintiff who was the adverse party to the attorney's client in litigation. The most recent decision on that point is Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143 (App. 1999). In McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985), the Court of Appeals held that the rationale of permitting attorneys to be held liable for committing the intentional torts of abuse of process and/or malicious prosecution would also support the imposition of liability who knowingly prepared for a client a fraudulent conveyance in favor of defrauded creditors:

The privilege an attorney has for his actions in representing a client is a qualified one that does not extend to the intentional torts of malicious prosecution and abuse of process. Nor should the privilege apply to the intentional acts of furthering and participating in a fraudulent conveyance.

Id., 151 Ariz. at 394, 728 P.2d at 394. See also Boone v. Superior Court In and For Maricopa County, 145 Ariz. 235, 242, 700 P.2d 1335, 1342, fn.2 (1985). The two decisions which initially recognized this rule, Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69 (App. 1980) and Bird v. Rothman, 128 Ariz. 599, 617 P.2d 1097 (App. 1981), cert. denied 454 U.S. 865, 102 S.Ct. 327, 70 L.Ed.2d 166 (1981), stressed, however, that malicious prosecution and abuse of process were intentional torts, and liability could not be imposed upon attorneys under such claims upon the basis of a showing of merely negligent conduct.

3.1:500   Complying with Law and Tribunal Rulings

There are no Arizona authorities which address the issue of whether AZ-ER 3.1 imposes an obligation on attorneys to comply with provisions of law and/or rulings of a tribunal. But see Matter of Miranda, 176 Ariz. 202, 859 P.2d 1335 (1993), where the Disciplinary Commission found that a lawyer's knowing disobedience of "several court orders" violated AZ-ER 3.4. There may be occasions where disobedience of an Order of a tribunal is a necessary step to put it in a posture for securing appellate review of it. Absent such a situation, violation of law or a court order may constitute misconduct within the meaning of AZ-ER 8.4. As is also discussed in Section 3.1:300, supra, Rule 37(b), Ariz.R.Civ.P. authorizes the imposition of a variety of sanctions for failure to comply with a prior court order compelling discovery.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Arizona Rule

3.2:101      Model Rule Comparison

The 2003 amendments to the Arizona Rules of Professional Conduct made no changes to AZ-ER 3.2 or the accompanying Comment.

AZ-ER 3.2 and its accompanying Comment are substantially identical to MR 3.2 and its accompanying Comment, with minor stylistic differences between the Comments.

3.2:102      Model Code Comparison

DR 7-102(A)(1) of the former Code of Professional Responsibility provided that "[a] lawyer shall not . . . file a suit, assert a position, conduct a defense (or) delay a trial . . . when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

3.2:200   Dilatory Tactics

AZ-ER 3.2 imposes upon lawyers an obligation to "make reasonable efforts to expedite litigation consistent with the interests of the client." As the Comment to the Rule explains:

Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

Comment, AZ-ER 3.2, š 1. Under this Rule, and others, accordingly, an attorney has an affirmative obligation to pursue clients' cases diligently and to expedite the litigation process. See Matter of Gawlowski, 177 Ariz. 311, 868 P.2d 324 (1994). In Matter of Miranda, 176 Ariz. 202, 859 P.2d 1335 (1993), the Disciplinary Commission found that respondent's dilatory tactics in litigation, including knowingly disobeying "several court orders," violated AZ-ER 1.3, 3.2 and 3.4.

In Matter of Shannon, 179 Ariz. 52, 876 P.2d 548, modified 181 Ariz. 307, 890 P.2d 602 (1994), the respondent lawyer had accepted a settlement draft from opposing counsel, which was tendered on the express condition that the respondent execute and return a satisfaction of a judgment which had been entered against opposing counsel's clients. Respondent accepted and negotiated the draft, but refused to sign and return the satisfaction of judgment, ultimately requiring the opposing counsel to seek a court order requiring respondent to do so. The respondent lawyer argued that the provisions of AZ-ER 3.2 were not implicated, because the litigation had been concluded with the entry of the judgment. In approving the imposition of discipline upon respondent for, inter alia, violating the provisions of AZ-ER 3.2, the Supreme Court emphatically rejected this contention:

Moreover, Respondent misreads ER 3.2. That rule imposes an affirmative duty on lawyers to make reasonable efforts to expedite litigation. The caveat -- consistent with the interests of the client -- insures that a lawyer's efforts to expedite litigation do not conflict with the client's legitimate interests. The comments, however, make it clear that "delaying tactics" are discouraged. In analyzing whether a respondent violated ER 3.2, δ[t]he question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.' ER 3.2 (comments). As was evident by the trial court's imposition of costs, no substantial purpose was served in forcing Miller to file a motion to compel Respondent to execute the satisfaction of judgment. This court, therefore, finds that Respondent's unjustifiable delay in executing the satisfaction of judgment violated ER 3.2.

Id., 179 Ariz. at 67, 876 P.2d at 563.

In Arizona Ethics Opinion No. 86-02, the Committee on the Rules of Professional Conduct (the "Committee") responded to an inquiry from an attorney who had been appointed to act as counsel for a juvenile criminal defendant, and was confronted with a situation where the juvenile's parents had attempted to intervene in the proceedings by filing meritless pleadings in both the Juvenile Court and the Arizona Supreme Court. The Committee advised the inquirng attorney to take no action to have the pleadings quashed. In Arizona Ethics Opinion No. 90-16, the inquiring attorney was representing a defendant in a civil action in which the court had ruled in favor of the plaintiff, but the attorney believed that a decision in another case would soon be issued which would justify a request for reconsideration or reversal of the decision in the inquiring attorney's case. The Committee advised that the inquiring attorney could ethically delay approval of the judgment in the client's case, but was required to act within the appropriate time limits imposed by the court or by court rules.

3.2:300   Judicial Sanctions for Dilatory Tactics

There are a variety of statutory provisions, and provisions in the Arizona Rules of Civil Procedure, which authorize the imposition of sanctions for misconduct during the course of litigation, including the employment of clearly dilatory tactics. The most frequently invoked basis for the assessment of sanctions for abusive litigation practice is Rule 11(a) of the Arizona Rules of Civil Procedure (hereinafter "Ariz.R.Civ.P."). Rule 11 imposes upon attorneys and unrepresented parties the responsibility to insure that assertions made, and positions taken, in pleadings are done so in good faith and not for some improper purpose. The Rule's requirements apply not just to pleadings as defined in Rule 7(a), but to motions and other papers that are filed as well. It is intended to discourage frivolous and/or legally unreasonable claims, or pleadings that are not without factual foundation, even though not filed in subjective faith. It has been held that the obligations imposed upon attorneys by Rule 11(a) are at least analogous to those imposed by AZ-ER 3.1. A common theme in both is the need for an examination of whether a claim is frivolous by considering both the objective legal reasonableness of the theory or claim and the subjective motive of the proponent of the claim. Matter of Levine, 174 Ariz. 146, 847 P.2d 1093 (1993); Hill v. Chubb Life American Ins. Co., 178 Ariz. 37, 870 P.2d 1133 (App. 1993), vacated on other grounds 182 Ariz. 158, 894 P.2d 701 (1995).

A nominally separate basis for awarding sanctions for the bringing of meritless claims is provided by A.R.S. § 12-349. That statute provides that, in any civil action commenced in a court of record, the court shall assess reasonable attorney's fees and, at the court's discretion, double damages of not to exceed five thousand dollars ($5,000) against any attorney or party, including the state or any political subdivision, who is found to have done any of the following:

1. Brings or defends a claim without substantial justification;

2. Brings or defends a claim solely or primarily for delay or harassment;

3. Unreasonably expands or delays the proceeding;

4. Engages in abuse of discovery.

"Without substantial justification" is defined in the statute to mean that the claim or defense constitutes harassment, is groundless and is not made in good faith. A.R.S. § 12-349(f). Subpart (C) of the statute also provides that attorney's fees may not be assessed if, after filing an action, a voluntary dismissal is filed for any claim or defense within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that the claim or defense was without substantial justification.

A.R.S. § 12-350 provides that, in awarding attorney's fees under A.R.S. § 12-349, the Court must set forth the specific reasons for the award, and may take into account the following factors in determining whether such an award is warranted:

1. The extent of any effort made to determine the validity of a claim before the claim was asserted;

2. The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid;

3. The availability of facts to assist a party in determining the validity of a claim or defense;

4. The relative financial positions of the parties involved;

5. Whether the action was prosecuted, in whole or in part, in bad faith;

6. Whether issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict;

7. The extent to which the party prevailed with respect to the amount and number of claims in controversy; and

8. The amount and conditions of any offer of judgment or settlement as related to the amount and conditions of the ultimate relief granted by the court.

It has been held that the same issues and concerns are involved, where a party requests sanctions under A.R.S. § 12-349, as where the request is based upon Rule 11, Ariz.R.Civ.P. Harris v. Reserve Life Insurance Company, 158 Ariz. 380, 762 P.2d 1334 (App. 1988).

Rule 11(a), Ariz.R.Civ.P. requires that every pleading, motion and other paper (which includes discovery papers) be signed by at least one attorney of record for the party on whose behalf it is submitted, or by the unrepresented party. Under the Rule, as amended in 1984, the signature constitutes a certification by the party or attorney that the pleading "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose. . . ." Before signing a pleading, counsel is required to make reasonable efforts to assure that the matters asserted are not illusory, frivolous, unnecessary or insubstantial. James, Cooke & Hobson, Inc. V. Lake Havasu Plumbing & Fire Protection, 177 Ariz. 316, 868 P.2d 329 (App. 1993). In addition, as the facts of a case develop, counsel is under a continuing obligation to assess the validity of claims asserted. Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221, 866 P.2d 889 (App. 1993); Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 745 P.2d 617 (App. 1987).

The "reasonable efforts" required in any specific instance will depend upon a variety of factors, including the facts already known to or readily ascertainable by counsel, the amount of time available for investigation, the need to rely upon others, including the client, for information, and the plausibility of the claim itself. Boone v. Superior Court In and For Maricopa County, 145 Ariz. 235, 700 P.2d 1335 (1985). The test is ordinarily an objective one of reasonableness, unless there is an allegation and proof of the bringing of a non-frivolous claim for an improper motive. Matter of Levine, 174 Ariz. 146, 847 P.2d 1093 (1993); Hill v. Chubb Life American Ins. Co., 178 Ariz. 37, 870 P.2d 1133 (App. 1993), vacated on other grounds 182 Ariz. 158, 894 P.2d 701 (1995). The filing of an action is not frivolous simply because counsel has not first substantiated the facts or expects to develop critical evidence through discovery. Smith v. Lucia, 173 Ariz. 200, 842 P.2d 1303 (App. 1992); Roberts v. Kino Community Hospital, 159 Ariz. 333, 767 P.2d 56 (App. 1988). Similarly, the fact that summary judgment has been granted against a party is not dispositive of the issue of whether sanctions against that party's attorney are warranted under Rule 11. Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 771 P.2d 469 (App. 1989).

The trial court has broad discretion is fashioning an appropriate sanction where a violation of Rule 11 is found, including an award of expenses and attorneys' fees. The Rule's prior specific reference to the striking of pleadings was eliminated solely because it was deemed unnecessary, and does not signify that the sanction of striking pleadings may not be employed. The sanctions imposed, however, must bear some relationship to the violation and, where a monetary sanction is imposed, it should be related to the expenses directly caused by the sanctioned conduct. Taliaferro v. Taliaferro, 188 Ariz. 333, 935 P.2d 911 (App. 1996).

The availability of Rule 11 does not operate to deprive the trial court of its inherent power to impose sanctions for attorney misconduct before the Court and/or violations of the rules of procedure. Precision Components, Inc. V. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 880 P.2d 1098 (App. 1993). That power arises from, and is governed by, the control necessarily vested in courts to manage their own affairs so as to accomplish the orderly and expeditious disposition of disputes. Hmielewski v. Maricopa County, 192 Ariz. 1, 960 P.2d 47 (App. 1997). The imposition of sanctions under the Court's inherent power to do so should ordinarily be preceded by some form of notice and opportunity to be heard on the issue, but that may consist of the trial court explaining to the attorneys the reason for the proposed sanctions and the form they will take, and providing an opportunity to argue against them. Id. Whether an additional hearing on sanctions should be conducted depends on the nature of the case, and the factors to be considered include (1) the general circumstances of the violation, (2) the type and severity of the sanctions being considered, (3) the trial court's degree of participation in the proceedings and knowledge of the underlying facts, and (4) the need, if any, for further inquiry. Id.

The Arizona Rules of Civil Procedure also contain several provisions authorizing the imposition of sanctions for disclosure or discovery failures and/or abuses. The mildest of the sanctions that can be assessed is an award of the costs and expenses, including reasonable attorneys' fees, incurred by the successful party on a motion to compel discovery and/or disclosure. Rule 37(a)(4), Ariz.R.Civ.P. This sanction is available where one of the following failures to make discovery and/or disclosure is involved:

1. A deponent fails to answer a question propounded or submitted at a deposition, or gives an answer that is evasive or incomplete.

2. A corporation or other entity fails to designate a representative to testify on its behalf at a deposition.

3. A party fails to answer an interrogatory propounded under Rule 33.

4. A party, in response to a request for production or inspection under Rule 34, Ariz.R.Civ.P., fails to state that inspection or production will be permitted, or fails to permit inspection or production as requested.

5. A party fails to make disclosure of the matters required to be disclosed by Rule 26.1, Ariz.R.Civ.P., or makes a disclosure that is evasive or incomplete.

Sanctions for a failure to make requested discovery or the disclosures required by Rule 26.1, Ariz.R.Civ.P. are permitted if a motion to compel disclosure is granted, or if the requested discovery or disclosure is provided after the motion is filed but before a ruling is secured, unless the Court finds that the moving party did not make a good faith effort to obtain the discovery or disclosure sought prior to resorting to a motion. Sanctions may also include an award of expenses and attorneys' fees, unless the Court finds that the noncompliance was substantially justified, or that other circumstances make an award of expenses and fees unjust. Scottsdale Princess Partnership v. Maricopa County, 185 Ariz. 368, 916 P.2d 1084 (App. 1995).

In addition, under the Rule as amended, where a failure to disclose, or a misleading disclosure, results in a party being required to engage in investigation or to conduct discovery that should not have been unnecessary, the Court must direct the offending party to reimburse the other party for the expenses thereby incurred, including attorneys' fees. Unless the failure to disclose is found by the trial judge to be harmless, a party failing to make a timely disclosure of evidence may not use that evidence at trial, at any hearing, or in connection with a motion, except with leave of court for good cause shown. Allstate Insurance Co. V. O'Toole, 182 Ariz. 284, 896 P.2d 254 (1995); Zuern v. Ford Motor Company, 188 Ariz. 486, 937 P.2d 676 (App. 1996), motion for depublication denied 190 Ariz. 574, 951 P.2d 449 (1997); Perguson v. Tamis, 188 Ariz. 425, 937 P.2d 347 (App. 1996). In addition, Rule 37(d), Ariz.R.Civ.P. specifically states that a knowing failure to disclose damaging or unfavorable evidence can be grounds for the imposition of more serious sanctions, up to and including dismissal of a claim or defense.

Rule 37(b), Ariz.R.Civ.P., authorizes an additional array of sanctions which may be applied where a party has failed to comply with a previous order compelling discovery. In that circumstance, the Court is authorized to do one or more of the following:

1. Enter an order that the matters which were the subject of the prior order shall be deemed established against the recalcitrant party's position.

2. Enter an order precluding the recalcitrant party from asserting certain claims or defenses or introducing evidence with respect to them.

3. Enter an order striking the pleadings or portions thereof of the recalcitrant party, or dismissing the action or portions thereof, or entering the default of the recalcitrant party.

4. Finding the recalcitrant party in contempt of court.

The contempt sanction may not be employed for failure to obey an order to submit to a physical or mental examination. An award of sanctions under Rule 37(b) requires that there have been a violation of a prior order compelling discovery. The very same sanctions, however, can be awarded under Rule 37(f), even where there has been no prior order or disobedience thereof, in the following instances:

1. Where a party, or a representative of a corporate party, fails to appear for a properly noticed deposition;

2. Where a party fails to serve answers or objections to interrogatories under Rule 33, Ariz.R.Civ.P.; and

3. Where a party fails to serve a written response to a properly served Rule 34 request for production or inspection.

See Verde Ditch Company v. James, 157 Ariz. 369, 758 P.2d 144 (App. 1988).

Finally, Rule 37(e), Ariz.R.Civ.P., deals specifically with the failure of a party to admit matters made the subject of a request for admissions under Rule 36. If the party seeking the admission subsequently proves the truth of the matter in question, the Court can award that party the expenses incurred in making that proof, including reasonable attorneys' fees, unless the Court finds that the request was objectionable, the matter was not of substantial importance, the party in question had good reason to believe they would prevail on the issue, or there were other good grounds for the failure to admit. West v. Sundance Development Company, 169 Ariz. 579, 821 P.2d 240 (App. 1991); Aetna Loan Co. V. Apache Trailer Sales, 1 Ariz.App. 322, 402 P.2d 580 (1965).

In the discovery context, the issue of what sanction, if any, to apply in any given circumstance is one committed to the trial court's discretion. Granger v. Wisner, 134 Ariz.377, 656 P.2d 1238 (1982); AG Rancho Equipment Co. V. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Birds Intern. Corp. V. Arizona Maintenance Co., 135 Ariz. 545, 662 P.2d 1052 (App. 1983). Any sanction that is imposed, however, must be "appropriate" and should bear some relationship to the nature of the violation and the harm that it caused. Taliaferro v. Taliaferro, 188 Ariz. 333, 935 P.2d 911 (App. 1996). Dismissal of the action, or the entry of the party's default, however, is a very drastic sanction that should only be invoked in extreme circumstances. Austin v. City of Scottsdale, 140 Ariz. 579, 684 P.2d 151 (1984); Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App. 1997); Lenze v. Synthes, Ltd., 160 Ariz. 302, 772 P.2d 1155 (App. 1989). Generally, dismissal of an action, or the entry of a default, is warranted only where the party personally shares complicity in the abusive behavior and, even then, other, less severe sanctions should be considered. Groat v. Equity American Insurance Co., 180 Ariz. 342, 884 P.2d 228 (App. 1994); Nesmith v. Superior Court, 164 Ariz. 70, 790 P.2d 768 (App. 1990). If there is a question as to whether the misconduct involved was that of the party or counsel, a hearing should be conducted to resolve it. AG Rancho Equipment Co. V. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Weaver v. Synthes, Ltd., 162 Ariz. 442, 784 P.2d 268 (App. 1989).

Finally, there are a number of other instances in which sanctions may be awarded against counsel during the course of litigation. For example, Rule 16(f), Ariz.R.Civ.P. authorizes the imposition of sanctions for failure to appear at a pretrial conference, failure to be substantially prepared to participate in a pretrial conference, failure to participate in good faith at a pretrial conference, and/or failure to comply with a pretrial or scheduling order. These sanctions provisions are also made specifically applicable, by Rule 16.1(h) of the Arizona Rules of Civil Procedure, to settlement conferences.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Arizona Rule

3.3:101      Model Rule Comparison

The 2003 amendments to this Rule made more specific the lawyer's obligations when the lawyer becomes aware of false, fraudulent or criminal misconduct before a tribunal. Amended paragraph (a)(1) clarifies that a lawyer has an obligation to correct false statements previously made to a tribunal by the lawyer. Amended paragraph (b) addresses a lawyer's obligation to take remedial measures, including disclosure to the tribunal where necessary, if a person is engaging, or has engaged, in criminal or fraudulent conduct in a proceeding before a tribunal.

AZ-ER 3.3 and MR 3.3 are identical. The Comments to the two Rules are substantially identical, with minor stylistic differences, and paragraph 7 of the Comment to AZ-ER 3.3 contains references to Arizona authority concerning the obligations of criminal defense counsel that are not contained in the corresponding paragraph of the Comment to MR 3.3.

3.3:102      Model Code Comparison

AZ-ER 3.3(a)(1) is substantially identical to former DR 7-102(A)(5), which provided that a lawyer shall not "knowingly make a false statement of law or fact."

AZ-ER 3.3(a)(2) is implicit in former DR 7-102(A)(3), which provided that "a lawyer shall not ... knowingly fail to disclose that which he is required by law to reveal."

AZ-ER 3.3(a)(3) is identical to former DR 7-106(B).

With regard to AZ-ER 3.3(a)(4), the first sentence is similar to former DR 7-102(A)(4), which provided that a lawyer shall not "knowingly use" perjured testimony or false evidence. The second sentence of AZ-ER 3.3(a)(4) resolves an ambiguity in the Code concerning the action required of a lawyer when the lawyer discovers that he or she has offered perjured testimony or false evidence. Former DR 7-104(A)(4) did not expressly deal with this situation, but the prohibition against the "use" of false evidence could be construed to preclude carrying through with a case based on such evidence when that fact has become known during the trial. Former DR 7-102(B)(1) provided that: "A lawyer who receives information clearly establishing that his client has ... perpetrated a fraud upon ... a tribunal shall ... if the client [does not rectify the situation] ... reveal the fraud to the ... tribunal ..." Since use of perjured testimony or false evidence is usually regarded as "fraud" upon the court, former DR 7-102(B)(1) apparently required disclosure by the lawyer in such circumstances. However, some states, including Arizona, amended former DR 7-102(B)(1), in conformity with an ABA-recommended amendment, to provide that the duty of disclosure did not apply when the "information is protected as a privileged communication." This qualification may have been empty, for the rule of attorney-client privilege had been construed to exclude communications that further a crime, including the crime of perjury. On this interpretation of former DR 7-102(B)(1), the lawyer had a duty to disclose the perjury.

AZ-ER 3.3(c) confers discretion on the lawyer to refuse to offer evidence that the lawyer "reasonably believes" is false. This gives the lawyer more latitude than former DR 7-104(A)(4), which prohibited the lawyer from offering evidence the lawyer "knew" was false.

There was no counterpart in the Code to AZ-ER 3.3(d).

3.3:200   False Statements to a Tribunal

AZ-ER 3.3(a) identifies four separate, but related, duties which a lawyer owes to a tribunal:

1. a lawyer may not make a false statement of fact or law to a tribunal;

2. a lawyer may not fail to correct a false statement of material fact or law previously made by the lawyer to a tribunal;

3. a lawyer must affirmatively disclose adverse, controlling precedent that is not discovered or disclosed by opposing counsel; and

4. a lawyer may not knowingly offer false evidence and, if the lawyer later learns that material evidence the lawyer has presented to a tribunal was false, the lawyer has an affirmative obligation to take reasonable remedial measures.

The term "tribunal" includes all courts and all other adjudicatory bodies. The duties imposed by AZ-ER 3.3(a) trump the lawyer's duty under AZ-ER 1.6 to maintain client confidences. AZ-ER 3.3(b), thus, explicitly states that the lawyer's responsibilities continue until the end of the proceeding, and "apply even if compliance requires disclosure of information otherwise protected by ER 1.6." The Comment to AZ-ER 3.3 echoes that sentiment: " A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal." Comment, AZ-ER 3.3, š 2.

In Arizona Ethics Opinion No. 03-01, the Committee on the Rules of Professional Conduct ("the Committee") held that it is not necessarily unethical for a lawyer to verify a pleading, provided an applicable rule or statute does not require that a verification be made by the client or party. Before doing so, however, a lawyer should either know that the assertions within the pleading are true, or believe that they are true based on a reasonably diligent inquiry. In verifying a pleading, the lawyer becomes responsible for its contents, and the lawyer's verification of a pleading that fails to disclose a material fact may amount to a misrepresentation to the court on the part of the attorney, in violation of this Rule.

In Arizona Ethics Opinion No. 90-16, the Committee on the Rules of Professional Conduct ("Committee") ruled that an attorney representing a defendant in a civil action in which the court has decided in favor of the plaintiff may not, consistently with AZ-ER 3.3(a), object to the form of the proposed judgment submitted to the court in the hope that a decision in another case, which the lawyer believes will soon issue, may justify a request for reconsideration or reversal of the decision in the client's case. The attorney may, however, in that circumstance, ethically delay giving approval to the judgment as to form in hopes that the decision will issue, so long as the attorney acts within the time limits imposed by the Court or the applicable procedural rules.

In Arizona Ethics Opinion No. 94-13, the Committee held that a lawyer is not required to disclose that the lawyer previously represented a mental health expert witness which the court has appointed to serve in a case in which the lawyer represents one of the parties, unless there is some showing that the former relationship will predispose the appointed expert in some unusual way to favor the position of the party represented by the expert's former attorney.

In Arizona Ethics Opinion No. 95-02, the Committee rules that, when an attorney is asked by a court about the availability of the attorney's client for trial, the attorney must maintain the confidentiality of information relating to the representation, but may disclose the intention of a client not to appear for trial, but only if (1) the attorney has actual knowledge that the client will not appear, and (2) the client's act is wilful and not the result of mistake or inadvertence.

In Matter of Fee, 182 Ariz. 597, 898 P.2d 975 (1995) concerned, among other things, an attorney's conduct at a settlement conference held before the court. A settlement offer had been made which specified a certain amount to be paid to the client and a separate amount to be paid to the attorney for attorney fees. The attorney and the client entered into an oral "side agreement," under which the offer would be accepted, but the client would pay over to the attorney a portion of the settlement proceeds that were designated by the adverse party as a payment to be made to the client. The Supreme Court criticized the practice of making settlement offers of that nature, which have a tendency to "drive a wedge" between a client and counsel, but nevertheless held that the attorney's failure to disclose the existence and effect of the "side deal" concerning fees to the settlement judge constituted a violation of the attorney's duties under AZ-ER 3.3(a) and grounds for the imposition of discipline.

In Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994), an attorney changed answers to interrogatories from a draft set that the client had approved, and submitted the "changed" answers to the court in support of a reply memorandum on a motion for partial summary judgment. The Court held that this action on the attorney's part constituted a violation of AZ-ER 3.3(a) and grounds for the imposition of discipline, even if the lawyer believed the altered interrogatory answers were "correct," because they constituted a misrepresentation to the court of the client's position on the issues.

In In re Ireland, 146 Ariz. 340, 706 P.2d 352 (1985), the Court held that intentionally misleading a court by omission concerning a divorce client's expenses and liabilities violated former DR 7-102(A)(3).

In In re Alcorn, 202 Ariz. 62, 41 P.3d 600 (2002), two lawyers had conducted what was in effect a "sham" trial, in which plaintiff would put on whatever evidence it chose, without objection from the defendant (who had received a covenant not to execute), both sides would then rest and the case would be dismissed on stipulation. The purpose of conducting what the court characterized as a moot court exercise was to put evidence before the trial judge bearing on a motion for summary judgment that had previously been granted in favor of a co-defendant, but which was the subject of a pending motion for reconsideration. The Court held that the conduct of such a mock trial at the taxpayers' expense was inherently prejudicial to the administration of justice, in violation of AZ-ER 8.4(c). The Court also found that the lawyers had not responded candidly to inquiries from the trial judge about the seemingly odd course of the proceedings, and that the rules did not contemplate hiding from the judge the ulterior purpose of the proceedings. This was found to be conduct involving fraud, deceit or misrepresentation, in violation of AZ-ER 8.4(c), and also a violation of AZ-ER 3.3(a)(1).

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Previously, AZ-ER 3.3 did not expressly address the situation of prospective perjury by the client, either in civil or criminal proceedings. The provision had been interpreted, however, to require a lawyer who knows that the client is about to commit perjury to attempt to dissuade the client. If unable to do so, the lawyer must seek to withdraw; if withdrawal is denied, the lawyer must make disclosure to the court. Nix v. Whiteside, 475 U.S. 157 (1986). As amended in 2003, however, AZ-ER 3.3(b) provides that: "A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." Both the language of the Rule, and the accompanying Comment, make clear that the "person" referred to in the Rule may include the lawyer's client:

If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

Comment, AZ-ER 3.3, š 6.

The first issue which arises where the issue is prospective client perjury is the degree to which the lawyer has "knowledge" that the client intends to commit perjury. For purposes of the Rules of Professional Conduct, "knows" "denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances." AZ-ER 1.0(f).

AZ-ER 1.6 contains two significant exceptions to a lawyer's general duty to maintain in confidence "information relating to representation of a client ...," without the client's consent to disclosure. AZ-ER 1.6(b) provides that a lawyer may disclose such information to the extent the lawyer reasonably believes is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm. AZ-ER 1.6 (c) permits a lawyer to reveal the intention of a client to commit a crime and the information necessary to prevent the crime from being committed. Perhaps most importantly, AZ-ER 3.3(c) specifically provides that: "The duties stated in paragraphs (a) and (b) . . . apply even if compliance requires disclosure of information otherwise protected by ER 1.6."

In Arizona Ethics Opinion No. 92-02, the Committee ruled that a criminal defense attorney has an obligation to inform the court when the attorney's client is using two different names in two separate criminal proceedings.

In Arizona Ethics Opinion No. 93-10, the Committee addressed the situation where an attorney learned that the client had given contradictory testimony in two separate legal proceedings, in one of which the attorney was serving as counsel. The Committee ruled that an attorney has a clear duty to disclose to a tribunal that the attorney's client has offered false material evidence which overrides the lawyer's duty to preserve client confidences. The disclosure obligation arises when the lawyer, after a reasonable inquiry, actually knows or becomes convinced that false evidence was offered. The Committee noted that, in that situation, the lawyer has a clear duty to act where the false evidence was offered in a matter which the lawyer was handling or had handled. Where the lawyer learns that the client has offered false testimony in a separate matter, in which the lawyer is or was not acting as counsel, disclosure of the facts concerning the false evidence is only permissible where it would be a crime for the client to leave the testimony uncorrected.

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

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

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

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

In Arizona Ethics Opinion No. 2001-14, the Committee addressed an inquiry from a lawyer handling a pending criminal appeal who had discovered that the client had used a false name in the trial court. The Committee advised that the lawyer must inform the client that a false name could not be used on appeal. If the client insisted on using a false name, the lawyer should seek to withdraw, but without revealing the client's use of a false name. If the motion to withdraw was denied, then the lawyer must proceed but could not rely upon or argue the client's false identity in any further representation.

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

AZ-ER 3.4(b) provides that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law ..." The Comment to AZ-ER 3.4 says that "it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee." A violation of this Rule would in most instances entail a violation of AZ-ER 3.3 as well.

In Arizona Ethics Opinion No. 97-07, the Committee held that an attorney may pay a fact witness reasonable compensation for time spent preparing for testimony as long as the compensation is not based upon the outcome of the litigation. In that circumstance, the client must be ultimately responsible for the costs involved, and the reasonableness of the fee can only be determined on a case-by-case basis.

In Arizona Ethics Opinion No. 93-05, the Committee ruled that an attorney may employ a non-testifying trial consultant and may, under certain circumstances, pay that consultant a bonus if the case results in a settlement or is won at trial.

3.3:400   Disclosing Adverse Legal Authority

AZ-ER 3.3(a)(2) provides that a lawyer may not knowingly fail to disclose to a tribunal legal authority in the controlling jurisdiction that is known to the lawyer to be directly adverse to the client's position and is not disclosed or cited by opposing counsel. The Comment elaborates that: "Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal." Comment, AZ-ER 3.3, š 4. There are no Arizona authorities that elaborate upon or apply this principle.

In Arizona Ethics Opinion No. 87-14, the Committee ruled that an attorney may not cite to a trial court a Memorandum Decision (not for publication) of the Arizona Court of Appeals or the Arizona Supreme Court, except to establish res judicata, collateral estoppel or the law of the case.

3.3:500   Offering False Evidence

AZ-ER 3.3(a)(3) states specifically that: "A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false."

3.3:510      False Evidence in Civil Proceedings

When evidence that a lawyer knows to be false is provided by a person other than the client, the lawyer must refuse to offer it regardless of the client's wishes. In general, a lawyer has the authority, in civil cases, to refuse to offer testimony or other proof that the lawyer believes to be untrustworthy. Comment, AZ-ER 3.3, šš 5, 8.

When the false evidence is offered, or is to be offered, by the client, however, a conflict nominally arises between the lawyer's duty to maintain client confidences and the lawyer's duty of candor toward the tribunal. AZ-ER 3.3(c) now specifically states, however, that: "The duties stated in paragraphs (a) and (b) . . . apply even if compliance requires disclosure of information otherwise protected by ER 1.6." As the Comment to the Rule explains:

Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client or another witness called by the lawyer offers testimony the lawyer knows to be false, either during the lawyer's direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that would otherwise be protected by ER 1.6. It is for the tribunal then to determine what should be done - making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

Comment, AZ-ER 3.3, š 10.

In Arizona Ethics Opinion No. 93-10, the Committee on the Rules of Professional Conduct ("the Committee") addressed the situation where an attorney learned that the client had given contradictory testimony in two separate legal proceedings, in one of which the attorney was serving as counsel. The Committee ruled that an attorney has a clear duty to disclose to a tribunal that the attorney's client has offered false material evidence which overrides the lawyer's duty to preserve client confidences. The disclosure obligation arises when the lawyer, after a reasonable inquiry, actually knows or becomes convinced that false evidence was offered. The Committee noted that, in that situation, the lawyer has a clear duty to act where the false evidence was offered in a matter which the lawyer was handling or had handled. Where the lawyer learns that the client has offered false testimony in a separate matter, in which the lawyer is or was not acting as counsel, disclosure of the facts concerning the false evidence is only permissible where it would be a crime for the client to leave the testimony uncorrected.

In Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994), an attorney changed answers to interrogatories from a draft set that the client had approved, and submitted the "changed" answers to the court in support of a reply memorandum on a motion for partial summary judgment. The Court held that this action on the attorney's part constituted a violation of AZ-ER 3.3(a) and grounds for the imposition of discipline, even if the lawyer believed the altered interrogatory answers were "correct," because they constituted a misrepresentation to the court of the client's position on the issues.

3.3:520      False Evidence in Criminal Proceedings

In criminal cases, the lawyer's ethical dilemma in representing a defendant who intends to commit perjury is complicated by the constitutional right of a defendant to testify and the defendant's right to effective assistance of counsel. Thus, the general prohibition in AZ-ER 3.3(a)(3) on a lawyer offering evidence the lawyer knows to be false is made subject to the qualification: "other than the testimony of a defendant in a criminal matter." It has been held, however, that the defendant's right to effective assistance of counsel is not compromised by a criminal defense lawyer's threat to withdraw from representation and to make disclosure to the court if the client cannot be persuaded from the intent to offered perjured testimony. Nix v. Whiteside, 475 U.S. 157 (1986).

Paragraphs 7 and 9 of the Comment to the Rule specifically address this quandary, and offer the following guidance:

The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. Counsel must first attempt to persuade the accused to testify truthfully or not at all. If the client persists, counsel must proceed in a manner consistent with the accused's constitutional rights. See State v. Jefferson, 126 Ariz. 341, 615 P.2d 638 (1980); Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978). The obligation of the advocate under the Rules of Professional Conduct is subordinate to such constitutional requirements. See also Comment [9].

* * * * * * *

Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate the quality of evidence and thus impair the lawyer's effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify. See also Comment [7].

Comment, AZ-ER 3.3, šš 7, 9.

3.3:530      Offering a Witness an Improper Inducement

AZ-ER 3.4(b) provides that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law ..." The Comment to AZ-ER 3.4 says that "it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee." A violation of this Rule would in most instances entail a violation of AZ-ER 3.3 as well.

In Arizona Ethics Opinion No. 97-07, the Committee held that an attorney may pay a fact witness reasonable compensation for time spent preparing for testimony as long as the compensation is not based upon the outcome of the litigation. In that circumstance, the client must be ultimately responsible for the costs involved, and the reasonableness of the fee can only be determined on a case-by-case basis.

In Arizona Ethics Opinion No. 93-05, the Committee ruled that an attorney may employ a non-testifying trial consultant and may, under certain circumstances, pay that consultant a bonus if the case results in a settlement or is won at trial.

3.3:540      Interviewing and Preparing Witnesses

There are no Arizona authorities which discuss specifically an attorney's ethical obligations in interviewing and preparing witnesses. See the discussion under Section 3.3:530, supra.

3.3:600   Remedial Measures Necessary to Correct False Evidence

AZ-ER 3.3(a)(3) states, in pertinent part, that: "If a lawyer, the lawyer's client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." The Comment to the Rule elaborates:

Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client or another witness called by the lawyer offers testimony the lawyer knows to be false, either during the lawyer's direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that would otherwise be protected by ER 1.6. It is for the tribunal then to determine what should be done - making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

Comment, AZ-ER 3.3, š 10.

In Arizona Ethics Opinion No. 93-10, the Committee addressed the situation where an attorney learned that the client had given contradictory testimony in two separate legal proceedings, in one of which the attorney was serving as counsel. The Committee ruled that an attorney has a clear duty to disclose to a tribunal that the attorney's client has offered false material evidence which overrides the lawyer's duty to preserve client confidences. The disclosure obligation arises when the lawyer, after a reasonable inquiry, actually knows or becomes convinced that false evidence was offered. The Committee noted that, in that situation, the lawyer has a clear duty to act where the false evidence was offered in a matter which the lawyer was handling or had handled. Where the lawyer learns that the client has offered false testimony in a separate matter, in which the lawyer is or was not acting as counsel, disclosure of the facts concerning the false evidence is only permissible where it would be a crime for the client to leave the testimony uncorrected.

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

In criminal cases, there may be constitutional considerations that limit counsel's latitude to make disclosure as a reasonable remedial effort. See the discussion under Section 3.3:520, supra.

3.3:610      Duty to Reveal Fraud to the Tribunal

See the discussion under Section 3.3:600, supra.

3.3:700   Discretion to Withhold Evidence Believed to Be False

AZ-ER 3.3(a)(3) expressly confers upon a lawyer the discretion to refuse to offer evidence that the lawyer reasonably believes is false. With respect to civil cases, the Comment to the Rule offers the observation that: "Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false." Comment, AZ-ER 3.3, š 9. That same portion of the Comment, however, cautions that: "Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify." Id.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

AZ-ER 3.3(d) provides that, in an ex parte proceeding, a lawyer has an obligation to inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. The Comment to the Rule points out that the object of an ex parte proceeding is to yield a substantially just result, and that counsel for a party who is represented in such a proceeding has a "duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision." Comment, AZ-ER 3.3, š 14. There are no Arizona authorities that apply, or elaborate upon, these principles.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Arizona Rule

3.4:101      Model Rule Comparison

This Rule was not changed by the 2003 amendments. Language was added to paragraph 2 of the Comment to alert lawyers to the law governing possession of physical evidence of client crimes.

The language of AZ-ER 3.4 is identical to MR 3.4. The language in the Comment to AZ-ER 3.4 is substantially identical to the language in the comment to MR 3.4, with only minor stylistic differences.

3.4:102      Model Code Comparison

With regard to AZ-ER 3.4(a) , DR 7-109(A) provided that "A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal." DR7-109(B) provided that "A lawyer shall not advise or cause a person to secrete himself . . . for the purpose of making him unavailable as a witness . . ." DR 7-106(C)(7) provided that a lawyer shall not "intentionally or habitually violate any established rule of procedure or of evidence."

With regard to AZ-ER 3.4(b) , DR 7-102(B)(6) provided that a lawyer shall not

"participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-109(C) provided that "A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent on the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying. (2) Reasonable compensation to a witness for his loss of time in attending or testifying. (3) A reasonable fee for the professional services of an expert witness." EC 7-28 stated that "Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise."

AZ-ER 3.4(c) is substantially similar to DR 7-106(A), which provided that "A lawyer shall not disregard . . . a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling."

AZ-ER 3.4(d) has no counterpart in the Code.

AZ-ER 3.4(e) substantially incorporates DR 7-106(C)(1), (2), (3) and (4). DR 7-106(C)(2) proscribed asking a question "intended to degrade a witness or other person," a matter dealt with in ER 4.4. DR 7-106(C)(5), providing that a lawyer shall not "fail to comply with known local customs of courtesy or practice," was too vague to be a rule of conduct enforceable as law.

With regard to AZ-ER 3.4(f) , DR 7-104(A)(2) provided that a lawyer shall not "give advice to a person who is not represented other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."

3.4:103      Overview

AZ-ER 3.4 contains a number of separate requirements with which lawyers must comply, directly and indirectly, all of which are concerned with preserving the integrity of the adversary process. Specifically, AZ-ER 3.4 provides that a lawyer shall not:

(a) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist any other person to do so;

(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) Make a frivolous discovery request during the course of pretrial proceedings, or fail to make reasonably diligent effort to comply with legally proper discovery requests from an opposing party;

(e) Allude to any matter during trial that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue, except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless (1) the person is a relative or an employee or other agent of a client, and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

As the Comment to the Rule explains:

The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

Comment, AZ-ER 3.4, š 1. Each of the separate requirements imposed by AZ-ER is discussed in the ensuing Sections of this Chapter.

3.4:200   Unlawful Destruction and Concealment of Evidence

AZ-ER 3.4(a) prohibits an attorney from unlawfully obstructing another party's access to evidence, or unlawfully altering, destroying or concealing a document or other material having potential evidentiary value. The Rule also specifically provides that an attorney may not counsel or assist another person to do anything of that nature as well. As the Comment to this aspect of the Rule explains:

Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information.

Comment, AZ-ER 3.4, š 2.

Although it is not expressly stated in the Rule, the Arizona courts have interpreted AZ-ER 3.4(a) to include a requirement that an attorney "know" that another party's access to evidence is being improperly obstructed by the attorney's actions. In Matter of Shannon, 179 Ariz. 52, 876 P.2d 548, modified 181 Ariz. 307, 890 P.2d 602 (1994), the respondent had, in one litigation matter, changed draft interrogatory answers which his client had approved, and then submitted them to opposing counsel, with a verification signed by his clients, without advising the clients that he had made changes. Although the Court agreed that the Respondent's use of these interrogatory answers in resisting a motion for summary judgment, after he had been advised that his clients did not agree with them, violated AZ-ER 3.3, the submission of them to opposing counsel did not constitute a violation of either AZ-ER 3.4 or AZ-ER 4.1, because at the time he did so, he did not know that his clients did not agree with the changes he had made. Id., 179 Ariz. at 64, 876 P.2d at 560. As the Court observed: "All of the ethical rules in question - - 3.3, 3.4(a), 3.4(b) and 4.1 - - expressly or impliedly require some sort of knowledge on the part of the attorney." Id.

In civil cases, Arizona is a "mandatory disclosure" state, and attorneys engaged in the conduct of litigation are required to comply with the Arizona Rules of Civil Procedure. Rule 26.1 of those Rules sets forth nine (9) separate categories of information that must be disclosed without a specific request therefor, and mandates that in all civil cases, "parties shall make the initial disclosure . . . within forty (40) days after the filing of a responsive pleading to the Complaint . . . unless the parties otherwise agree, or the Court shortens or extends the time for good cause." Rule 26.1, Ariz.R.Civ.P. The Rule sets forth nine (9) separate categories of information that must be disclosed without a specific request therefor. A lawyer shall not unlawfully obstruct another party's access to evidence within this required time frame. See Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993) (clients and their lawyers have and continue to have obligation to respond truthfully to discovery requests seeking facts within their knowledge, and, if client refuses to disclose facts communicated to lawyer in confidence, at a minimum, the lawyer must withdraw).

Roughly similar requirements pertain in criminal cases. AZ-ER 3.8(d) imposes upon prosecutors an ethical obligation to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigated the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of his responsibility by a protective order of the tribunal." The Comment to this aspect of the Rule explains that a prosecutor may permissibly seek a protective order from the tribunal "if disclosure of information to the defense could result in substantial harm to an individual or to the public interest." More extensive and, in many instances, far more specific disclosure obligations are imposed upon prosecutors by Rule 15.1 of the Arizona Rules of Criminal Procedure.

The ethical obligation imposed by AZ-ER 3.8(d) was addressed by the Committee on the Rules of Professional Conduct ("the Committee") in its Arizona Ethics Opinion No. 94-07, where the Committee was asked to determine whether a prosecutor was ethically required to disclose certain information to an accused in three separate hypothetical situations. Before discussing the specific questions posed to it, the Committee stressed that the disclosure duty imposed by AZ-ER 3.8(d) is broader than the obligations imposed upon prosecutors by the Due Process Clause of the United States Constitution, as construed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) and its progeny, relying for that conclusion on the following excerpt from the ABA Comments to MR 3.8(d):

A prosecutor's ethical obligation, though derived from constitutional mandates, seeks to preserve public confidence in the prosecution function as well as to avoid constitutionally significant harm to the defendant. Thus, Rule 3.8(d) requires disclosure of all information that may tend to negate the defendant's guilt, mitigate the offense, or reduce punishment.

The first hypothetical situation presented for the Committee's consideration assumed a defendant charged with the felony of aggravated driving while under the influence to whom the Deputy County Attorney handling the prosecution had offered a stipulated sentence in exchange for a guilty plea. In the interim, however, the officer who had made the underlying arrest, who had observed the defendant's behavior at the scene, administered the field sobriety and breath tests and testified at the preliminary hearing, had passed away. The question put to the Committee was whether the Deputy County Attorney had an obligation to disclose this development to the defendant and, if so, when. The Committee noted that disclosure of the officer's death might be required by AZ-ER 3.8(d), but found it unnecessary to decide that question, because it felt that disclosure was required by Rule 15(a)(1) of the Arizona Rules of Criminal Procedure, and the prosecutor had an ethical obligation, under AZ-ER 3.4(c), to comply with the requirements of the law.

The second situation presented assumed a defendant charged with possession of narcotic drugs for sale, based upon the results of execution of a search warrant. After offering the defendant a stipulated sentence in exchange for a guilty plea, the Deputy County Attorney learned that the drugs seized from the defendant had been inadvertently destroyed by the police department, and the Committee was asked to opine whether the prosecutor had an ethical obligation to disclose that development to the defendant and, if so, when. Again, the Committee felt it unnecessary to determine whether disclosure was required by AZ-ER 3.8(d), because it felt that disclosure of the destruction of the evidence was necessary to comply with the prosecutor's obligations under Rule 15.1(a)(4) of the Arizona Rules of Criminal Procedure and AZ-ER 3.4. The Committee noted that disclosure should be made as soon as possible after the prosecutor learns of the destruction of the evidence.

The final situation presented to the Committee for its consideration assumed a defendant charged with driving while under the influence of drugs, based in large part on a urine sample taken from the defendant which had tested positive for the presence of methamphetamine. All of the sample, however, had been destroyed during the police's testing and the question presented was whether the prosecutor had an ethical obligation to disclose that fact to the defense. The Committee noted that disclosure would clearly be required if a written request had been made under Rule 15.1(c) of the Arizona Rules of Criminal Procedure, but the Committee was asked to assume that no such written request had been made. The Committee concluded that, even in the absence of such a written request, the lack of the original sample being available to the defense for retesting was sufficiently exculpatory to call for disclosure under AZ-ER 3.8(d).

Nor are defense counsel in criminal cases immune from requirements to disclose evidence under certain circumstances. Although it primarily premised its discussion on the limitations upon the duty of confidentiality imposed by AZ-ER 1.6, rather than the requirements of AZ-ER 3.4, the Court in Hitch v. Pima County Superior Court, 146 Ariz. 588, 708 P.2d 72 (App. 1985), did set forth certain standards to guide the conduct of criminal defense counsel who comes into possession of physical evidence which inculpates the attorney's client. Initially, the Court held that, if the physical evidence of the client's crime is contraband, the attorney may be required to turn the property or evidence over to the prosecution even in cases where it was obtained from the client. Id., 146 Ariz. At 591, 708 P.2d at 75. In cases where the inculpatory physical evidence is delivered to the attorney by a third party, if the attorney reasonably believes that the evidence will not be destroyed, the attorney may return it to the source, explaining the laws on concealment and destruction. On the other hand, if the attorney has reasonable grounds to believe that the evidence might be destroyed, if returned to the source, or if the client consents, the attorney may turn the evidence over to the prosecution. Id., 146 Ariz. At 594, 708 P.2d at 78. In Hitch, the Court held that, where a criminal defense attorney had obtained from a third party a wristwatch which the third party had found in the defendant's suit jacket, the defense attorney was required to turn the watch over to the prosecution, because the watch was similar to one the victim of the crime had been wearing shortly before his death.

An attorney who unlawfully obstructs another party's access to evidence, or who alters evidence, is subject to discipline for violating AZ-ER 3.4(a). For example, failing to timely respond to another party's discovery requests and a subsequent court order compelling a response was found to be a violation of AZ-ER 3.4 warranting a six month suspension and a two year probationary period. Matter of Cassalia, 173 Ariz. 372, 843 P.2d 654 (1992). See also Matter of Ziman, 174 Ariz. 61, 64, 847 P.2d 106, 109 (1993) (a 90-day suspension is appropriate for an attorney who fails to comply with a court order to respond to discovery requests, and fails to comply with an arbitrator's requests for information). In Matter of Rosenzweig, 172 Ariz. 511, 838 P.2d 1272 (1992), an Arizona attorney was disbarred for three years for altering an installment note by including additional language after a tenant in one of his personal properties had already signed it.

Arizona attorneys are also prohibited from unlawfully altering, destroying or concealing a document or other material having potential evidentiary value and must not counsel or assist another person to do so. AZ-ER 3.4(a). Although some jurisdictions recognize an action for damages by a litigant who suffers loss from destroyed or spoliated evidence, Arizona does not recognize an independent tort of spoliation against the opposing party or that party's attorney. See Dunlap v. City of Phoenix, 169 Ariz. 63, 817 P.2d 98 (App. 1990); LaRaia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986). A party and their attorney have an affirmative duty, however, to preserve relevant evidence within his or her control which is known to lead to admissible evidence. Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App. 1997). Failure to do so may lead to appropriate sanctions against the attorney and his or her client. Id.

In Arizona Ethics Opinion No. 2001-04, the Committee on the Rules of Professional Conduct ("the Committee") addressed the obligations of a lawyer in a civil case who received from a client documents that contained privileged or otherwise confidential information which the client had obtained from an employee of the adverse party. The Committee endorsed the views of ABA Formal Opinion No. 94-382, and held that the lawyer must refrain from examining the materials or making use of them, notify (with the client's consent) opposing counsel of the receipt of them, and either abide by opposing counsel's instructions as to their disposition or seek a ruling from the court. If the client refused to consent to notifying opposing counsel, the lawyer could not do so, but must still refrain from examining or using the materials and, if the lawyer did so, the lawyer would not be required to withdraw. The Committee went on to note that, if there was evidence that the client had some complicity in obtaining the materials, the lawyer must counsel the client about the legal consequences of that and instruct the client to discontinue. If the client refused to desist, then the lawyer could, but was not required to, advise the adversary or the authorities. The lawyer must also decline to accept any further documents of such a nature obtained by the client.

3.4:210      Physical Evidence of Client Crime

AZ-ER 3.4(a) specifically prohibits Arizona attorneys from unlawfully altering, destroying or concealing a document or other material having potential evidentiary value and they must not counsel or assist another person to do so. As the Comment to the Rule explains:

Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information. . . .

Comment, AZ-ER 3.4, š 2.

Although it primarily premised its discussion on the limitations upon the duty of confidentiality imposed by AZ-ER 1.6, rather than the requirements of AZ-ER 3.4, the Court in Hitch v. Pima County Superior Court, 146 Ariz. 588, 708 P.2d 72 (App. 1985), did set forth certain standards to guide the conduct of criminal defense counsel who comes into possession of physical evidence which inculpates the attorney's client. Initially, the Court held that, if the physical evidence of the client's crime is contraband, the attorney may be required to turn the property or evidence over to the prosecution even in cases where it was obtained from the client. Id., 146 Ariz. At 591, 708 P.2d at 75. In cases where the inculpatory physical evidence is delivered to the attorney by a third party, if the attorney reasonably believes that the evidence will not be destroyed, the attorney may return it to the source, explaining the laws on concealment and destruction. On the other hand, if the attorney has reasonable grounds to believe that the evidence might be destroyed, if returned to the source, or if the client consents, the attorney may turn the evidence over to the prosecution. Id., 146 Ariz. At 594, 708 P.2d at 78. In Hitch, the Court held that, where a criminal defense attorney had obtained from a third party a wristwatch which the third party had found in the defendant's suit jacket, the defense attorney was required to turn the watch over to the prosecution, because the watch was similar to one the victim of the crime had been wearing shortly before his death.

The Comment to the Rule was expanded in 2003 to alert lawyers to this issue and provide the following guidance: "Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances." Comment, AZ-ER 3.4, š 2.

In Arizona Ethics Opinion No. 87-05, the Committee on the Rules of Professional Conduct held that an attorney may ethically advise a client who has been arrested for driving under the influence of alcohol to refuse to undergo blood, urine or breath tests, but the attorney must fully disclose to the client the consequences of doing so, and leave the ultimate decision whether or not to do so to the client.

3.4:300   Falsifying Evidence

Under AZ-ER 3.4(b), an attorney may not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." This provision was found to have been violated, and disbarment warranted, where an attorney signed his clients' names to legal documents, and used his secretary's notarial seal to attest to those signatures, without the knowledge or permission of either the clients or the secretary. See Matter of Elowitz, 177 Ariz. 240, 866 P.2d 1326 (1994).

AZ-ER 3.4(b) also prohibits counseling or assisting a witness to testify falsely. Although it is not expressly stated in the Rule, the Arizona courts have interpreted both AZ-ER 3.4(a) and 3.4(b) to include a requirement that an attorney "know" that another party's access to evidence is being improperly obstructed by the attorney's actions. In Matter of Shannon, 179 Ariz. 52, 876 P.2d 548, modified 181 Ariz. 307, 890 P.2d 602 (1994), the respondent had, in one litigation matter, changed draft interrogatory answers which his client had approved, and then submitted them to opposing counsel, with a verification signed by his clients, without advising the clients that he had made changes. Although the Court agreed that the Respondent's use of these interrogatory answers in resisting a motion for summary judgment, after he had been advised that his clients did not agree with them, violated AZ-ER 3.3, the submission of them to opposing counsel did not constitute a violation of either AZ-ER 3.4 or AZ-ER 4.1, because at the time he did so, he did not know that his clients did not agree with the changes he had made. Id., 179 Ariz. at 64, 876 P.2d at 560. As the Court observed: "All of the ethical rules in question - - 3.3, 3.4(a), 3.4(b) and 4.1 - - expressly or impliedly require some sort of knowledge on the part of the attorney." Id.

3.4:310      Prohibited Inducements

AZ-ER 3.4(b) prohibits offering "an inducement to a witness that is prohibited by law . ." In Arizona Ethics Opinion No. 93-05, the Committee on the Rules of Professional Conduct ("the Committee") ruled that an attorney may employ a non-testifying trial consultant, and may ethically pay that individual a bonus fee if the case is won at trial, or settled, under certain specified conditions. On the other hand, in Arizona Ethics Opinion No. 97-07, the Committee held that a lawyer may only pay a fact witness reasonable compensation for time spent preparing for testimony, and that the compensation may not be based upon the outcome of the litigation. Moreover, the attorney's client must remain ultimately responsible for such costs, and the reasonableness of the fee paid the witness must be determined on a case-by-case basis.

3.4:400   Knowing Disobedience to Rules of Tribunal

Under AZ-ER 3.4(c), "[f]ailure to comply with a court order is the very heart of the subject misconduct." Matter of Miranda, 176 Ariz. 202, 204, 859 P.2d 1335, 1337 (1993). In Miranda, an attorney was retained to appeal his client's case, but the attorney filed an untimely and deficient opening brief with the court of appeals. Id. He was ordered to show cause why sanctions should not be imposed against him for filing the deficient late brief, to pay docket fees, and to remedy the deficiencies in the brief. Id. Because the attorney failed to timely respond to the court's order, and because he had twice been sanctioned in the previous five years, his license was suspended for seven (7) months. Id. 176 Ariz. at 205, 859 P.2d at 1338.

An attorney's non-compliance with another party's discovery requests is a violation of AZ-ER 3.4(d) which requires an attorney to use reasonably diligent efforts to comply with legally proper discovery requests. See In re Ames, 171 Ariz. 125, 829 P.2d 315 (1992). A lawyer's non-compliant behavior usually leads to a court order compelling compliance. Where the lawyer then refuses a court order to provide responses to discovery requests, the lawyer violates AZ-ER 3.4(c) because he or she knowingly disobeyed an obligation under the rules of a tribunal. Id.; see also Matter of Miranda, 176 Ariz. 202, 859 P.2d 1335 (1993).

In Arizona Ethics Opinion No. 88-01, the Committee determined that it was ethically improper for counsel to have ex parte contacts with, or to conduct ex parte interviews of, an opposing party's testifying expert witnesses. In reaching this conclusion, the Committee relied primarily on the provisions of AZ-ER 3.4(c) and a lawyer's obligation to comply with the provisions of the Arizona Rules of Civil Procedure, which only permitted discovery of testifying experts by interrogatory and agreed-upon depositions. The logical underpinnings of this Opinion have not been changed by ensuing amendments to the Rules of Civil Procedure which now permit the conduct of the deposition of an opponent's expert witnesses as a matter of right -- the Rules still do not authorize ex parte interviews of those experts.

Rule 28(a)(2) of the Arizona Rules of Civil Appellate Procedure specifies that a "memorandum decision" of an Arizona appellate court "is a written disposition of a matter not intended for publication." In Arizona Ethics Opinion No. 87-14, the Committee ruled that, by reason of AZ-ER 3.4(c), an attorney may not ethically cite to a trial court a memorandum decision of the Arizona Supreme Court or the Arizona Court of Appeals, other than for the purpose of establishing res judicata, collateral estoppel or the law of the case.

3.4:500   Fairness in Pretrial Practice

AZ-ER 3.4(d) provides that, during pretrial proceedings, a lawyer may not "make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party." An attorney's non-compliance with another party's discovery requests is a violation of AZ-ER 3.4(d) and warrants public censure. See In re Ames, 171 Ariz. 125, 829 P.2d 315 (1992). A lawyer's non-compliant behavior will eventually lead to a court order compelling compliance and where the lawyer then refuses a court order to provide responses to discovery requests, the lawyer violates ER 3.4(c) for knowingly disobeying an obligation under the rules of a tribunal. Id.; see also Matter of Miranda, 176 Ariz. 202, 859 P.2d 1335 (1993).

The making of frivolous discovery requests, and the failure to comply with reasonable discovery requests from opposing parties, may also subject the lawyer and/or the lawyer's client to one of a variety of sanctions authorized by the Arizona Rules of Civil Procedure. The mildest of the sanctions that can be assessed is an award of the costs and expenses, including reasonable attorneys' fees, incurred by the successful party on a motion to compel discovery and/or disclosure. Rule 37(a)(4), Ariz. R. Civ. P. This sanction is available where one of the following failures to make discovery and/or disclosure is involved:

1. A deponent fails to answer a question propounded or submitted at a deposition, or gives an answer that is evasive or incomplete.

2. A corporation or other entity fails to designate a representative to testify on its behalf at a deposition.

3. A party fails to answer an interrogatory propounded under Rule 33.

4. A party, in response to a request for production or inspection under Rule 34, Ariz.R.Civ.P., fails to state that inspection or production will be permitted, or fails to permit inspection or production as requested.

5. A party fails to make disclosure of the matters required to be disclosed by Rule 26.1, Ariz.R.Civ.P., or makes a disclosure that is evasive or incomplete.

Sanctions for a failure to make requested discovery or the disclosures required by Rule 26.1, Ariz.R.Civ.P. are permitted if a motion to compel disclosure is granted, or if the requested discovery or disclosure is provided after the motion is filed but before a ruling is secured, unless the Court finds that the moving party did not make a good faith effort to obtain the discovery or disclosure sought prior to resorting to a motion. Sanctions may also include an award of expenses and attorneys' fees, unless the Court finds that the noncompliance was substantially justified, or that other circumstances make an award of expenses and fees unjust. Scottsdale Princess Partnership v. Maricopa County, 185 Ariz. 368, 916 P.2d 1084 (App. 1995).

In addition, under the Rule as amended, where a failure to disclose, or a misleading disclosure, results in a party being required to engage in investigation or to conduct discovery that should not have been unnecessary, the Court must direct the offending party to reimburse the other party for the expenses thereby incurred, including attorneys' fees. Unless the failure to disclose is found by the trial judge to be harmless, a party failing to make a timely disclosure of evidence may not use that evidence at trial, at any hearing, or in connection with a motion, except with leave of court for good cause shown. Allstate Insurance Co. v. O'Toole, 182 Ariz. 284, 896 P.2d 254 (1995); Zuern v. Ford Motor Company, 188 Ariz. 486, 937 P.2d 676 (App. 1996), motion for depublication denied 190 Ariz. 574, 951 P.2d 449 (1997); Perguson v. Tamis, 188 Ariz. 425, 937 P.2d 347 (App. 1996). In addition, Rule 37(d), Ariz.R.Civ.P. specifically states that a knowing failure to disclose damaging or unfavorable evidence can be grounds for the imposition of more serious sanctions, up to and including dismissal of a claim or defense.

Rule 37(b), Ariz.R.Civ.P. authorizes an additional array of sanctions which may be applied where a party has failed to comply with a previous order compelling discovery. In that circumstance, the Court is authorized to do one or more of the following:

1) Enter an order that the matters which were the subject of the prior order shall be deemed established against the recalcitrant party's position.

2) Enter an order precluding the recalcitrant party from asserting certain claims or defenses or introducing evidence with respect to them.

3) Enter an order striking the pleadings or portions thereof of the recalcitrant party, or dismissing the action or portions thereof, or entering the default of the recalcitrant party.

4) Finding the recalcitrant party in contempt of court.

The contempt sanction may not be employed for failure to obey an order to submit to a physical or mental examination. An award of sanctions under Rule 37(b) requires that there have been a violation of a prior order compelling discovery. The very same sanctions, however, can be awarded under Rule 37(f), even where there has been no prior order or disobedience thereof, in the following instances:

1) Where a party, or a representative of a corporate party, fails to appear for a properly noticed deposition;

2) Where a party fails to serve answers or objections to interrogatories under Rule 33, Ariz.R.Civ.P.; and

3) Where a party fails to serve a written response to a properly served Rule 34 request for production or inspection.

See Verde Ditch Company v. James, 157 Ariz. 369, 758 P.2d 144 (App. 1988).

Finally, Rule 37(e), Ariz.R.Civ.P. deals specifically with the failure of a party to admit matters made the subject of a request for admissions under Rule 36. If the party seeking the admission subsequently proves the truth of the matter in question, the Court can award that party the expenses incurred in making that proof, including reasonable attorneys' fees, unless the Court finds that the request was objectionable, the matter was not of substantial importance, the party in question had good reason to believe they would prevail on the issue, or there were other good grounds for the failure to admit. West v. Sundance Development Company, 169 Ariz. 579, 821 P.2d 240 (App. 1991); Aetna Loan Co. v. Apache Trailer Sales, 1 Ariz.App. 322, 402 P.2d 580 (1965).

In the discovery context, the issue of what sanction, if any, to apply in any given circumstance is one committed to the trial court's discretion. Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982); AG Rancho Equipment Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Birds Intern. Corp. v. Arizona Maintenance Co., 135 Ariz. 545, 662 P.2d 1052 (App. 1983). Any sanction that is imposed, however, must be "appropriate" and should bear some relationship to the nature of the violation and the harm that it caused. Taliaferro v. Taliaferro, 188 Ariz. 333, 935 P.2d 911 (App. 1996). Dismissal of the action, or the entry of the party's default, however, is a very drastic sanction that should only be invoked in extreme circumstances. Austin v. City of Scottsdale, 140 Ariz. 579, 684 P.2d 151 (1984); Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App. 1997); Lenze v. Synthes, Ltd., 160 Ariz. 302, 772 P.2d 1155 (App. 1989). Generally, dismissal of an action, or the entry of a default, is warranted only where the party personally shares complicity in the abusive behavior and, even then, other, less severe sanctions should be considered. Groat v. Equity American Insurance Co., 180 Ariz. 342, 884 P.2d 228 (App. 1994); Nesmith v. Superior Court, 164 Ariz. 70, 790 P.2d 768 (App. 1990). If there is a question as to whether the misconduct involved was that of the party or counsel, a hearing should be conducted to resolve it. AG Rancho Equipment Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Weaver v. Synthes, Ltd., 162 Ariz. 442, 784 P.2d 268 (App. 1989).

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

3.4:600   Improper Trial Tactics

Under AZ-ER 3.4(e), a lawyer may not "allude to any matter during trial that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue, except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused . . ." Lawyers are thus prohibited from stating at trial a personal opinion as to the credibility of a witness. See State v Duzan, 176 Ariz. 463, 862 P.2d 223 (1993). Moreover, "[f]or ethical as well as legal reasons, an attorney should not imply to the jury that opposing counsel may not believe in the defense presented." State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983) citing State v. Travis, 26 Ariz.App. 24, 27, 545 P.2d 986, 989 (1976).

Prosecutors have a special duty to see that defendants receive a fair trial. This duty, and some of its particular elements, are discussed in the Chapter devoted to AZ-ER 3.8, infra. See also State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998) (noting that prosecutor neglected duty to disclose to defense matters related to the opinion of the state's fingerprint examiner). It is not misconduct, however, for a prosecutor to arrange a favorable plea agreement with one of several witnesses testifying against the defendant. State v. Dumaine, 162 Ariz. 392, 783 P.2d 1184 (1989).

Prosecutors must avoid assertions of personal knowledge or beliefs. Duzan, 176 Ariz. 463, 862 P.2d 223 (1993). Two types of prosecutorial vouching are "(1) when the prosecutor places the prestige of the government behind its witness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness' testimony." State v. Dumaine, 162 Ariz. At 401, 783 P.2d at 1193. When a prosecutor argued in his closing that the defendant would be "tickled pink" if he were convicted of only one charge, the statement was found to be within the latitude afforded attorneys in final argument. See State v. West, 176 Ariz. 432, 862 P.2d 192 (1993).

3.4:700   Advising Witness Not to Speak to Opposing Parties

AZ-ER 3.4(f) can be viewed as a more particularized application of AZ-ER 3.4(a) which proscribes obstruction of another party's access to evidence. Except in limited circumstances, AZ-ER 3.4(f) prohibits a lawyer from requesting a person other than the lawyer's client to refrain from voluntarily giving relevant information to another party. There are no Arizona authorities that elaborate on the provisions of the Rule itself.

Under AZ-ER 3.4(f), the limited circumstances in which the lawyer may request a person to refrain from giving relevant information to another party is where the person is a relative or an employee or other agent of a client, and the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. As 3.4(f) may apply to organizations, it is noted that AZ-ER 4.2 prohibits a lawyer from communicating about the matter in which the adverse party is an organization represented by counsel "with persons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization," without counsel for the organization's consent. AZ-ER 4.2, Comment.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Arizona Rule

3.5:101      Model Rule Comparison

The 2003 amendments added paragraph (c) dealing with communications with trial jurors following discharge of the jury and made corresponding changes to the Comment to the Rule.

AZ-ER 3.5 and its accompanying Comment are identical to MR 3.5 and its accompanying Comment.

3.5:102      Model Code Comparison

DRs 7-108(A) and 7-108(B)(2) prohibited lawyers from communicating prior to trial with persons known to be a member of the general jury venire, and during trial with selected jurors, concerning a case they might hear or were hearing. DR 7-110(B) provided that a lawyer was not to "communicate . . . as to the merits of the cause with a judge or an official before whom the proceeding is pending . . . except upon adequate notice to opposing counsel . . . [or] as otherwise authorized by law." DR 7-106(C)(6) provided that a lawyer shall not "engage in undignified or discourteous conduct which is degrading to a tribunal."

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

AZ-ER 3.5 (a) provides that a lawyer shall not seek to influence a judge, juror, prospective juror or an official of a tribunal by means prohibited by law. This is simply one specific prohibition contained in a Rule whose purpose is to insure the integrity, impartiality and decorum of adjudicative tribunals. Thus, in Matter of Engan, 180 Ariz. 13, 881 P.2d 345 (1994), the Supreme Court affirmed an Order of the Disciplinary Commission disbarring Engan for a number of ethical violations, including a violation of AZ-ER 3.5. The conduct which the Commission had found to violate this particular Rule appeared to arise from a situation where a court had set a hearing to determine if a client whom Engan was representing in a domestic relations matter should be held in contempt for having paid the filing fee with a check that had been returned for insufficient funds. The Court subsequently discovered that it was Engan, rather than the client, who had submitted the dishonored check, and Engan failed to appear for the hearing.

3.5:210      Improperly Influencing a Judge

The prohibition of AZ-ER 3.5(a) on a lawyer's seeking to improperly influence a judge applies with equal force to magistrates and other persons who function in an adjudicative capacity, including arbitrators. See Matter of Ziman, 174 Ariz. 61, 847 P.2d 106 (1993). In State v. City Court of City of Tucson, 150 Ariz. 99, 722 P.2d 267 (App. 1996), the Court was presented with the issue of the propriety of a policy of the Chief Prosecutor of Tucson that required all Deputy City Prosecutors to routinely seek a peremptory change of judge, which was permitted under the applicable procedural rules, whenever a DUI matter was assigned to a specific City Court Magistrate. The admitted reason for the policy was that the Magistrate in question had consistently ruled against the prosecution, in what the Chief Prosecutor considered to be an arbitrary and capricious manner, both in pretrial motions and at trial. The Court found that the policy with its attendant effects was an attempt to intimidate not only the Magistrate in question, but also, by example, the entire Tucson City Court. The Court concluded:

As such the policy was an abuse of the rules and a threat to the independence and integrity of the judiciary which cannot be allowed.

Id., 150 Ariz. at 102-103, 722 P.2d at 270-271. A similar concern was expressed by the Committee on the Rules of Professional Conduct ("the Committee") in its Arizona Ethics Opinion No. 93-13, where it concluded that a policy of a prosecutor's office of filing blanket notices of a peremptory change of judge when matters were assigned to a particular judge, because of a perception about the judge's rulings in criminal matters, might violate the provisions of this Rule, depending upon the motive behind the notices.

Under Rule 28(c) of the Arizona Rules of Civil Appellate Procedure, a disposition of an appeal by the Supreme Court or the Court of Appeals that is designated a Memorandum Decision (i.e., not for publication) may not be cited as precedent except for (1) the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case, or (2) informing the appellate court of other memorandum decisions so that the court can decide whether to publish an opinion, grant a motion for reconsideration, or grant a petition for review. In Arizona Ethics Opinion No. 87-14, the Committee, citing this Rule, held that it was improper for an attorney to cite to a trial court a Memorandum Decision of either the Arizona Supreme Court or the Arizona Court of Appeals, other than for the purpose of establishing res judicata, collateral estoppel or the law of the case, even if the attorney states in the brief and argument that the Memorandum Decision does not constitute precedent.

A lawyer is not justified in providing a gift, favor or loan to a judge, or a member of the judge's family, except under circumstances in which the judge is permitted to accept it by the provisions of Canon 4(D)(5) of the Arizona Code of Judicial Conduct, Rule 81, Rules of the Arizona Supreme Court. These circumstances include gifts incident to a public testimonial,, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, an invitation to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice, and ordinary social hospitality.

3.5:220      Improperly Influencing a Juror

AZ-ER 3.5(a) also prohibits a lawyer seeking to influence a juror or prospective juror. There are no Arizona authorities that elaborate upon that principle or apply its provisions to specific situations.

3.5:300   Improper Ex Parte Communication

  • Primary Arizona References: AZ-ER 3.5(b) and accompanying Comment
  • Background References: ABA Model Rule 3.5(b), Other Jurisdictions
  • Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 172, Wolfram § 11.3.3, State Bar of Arizona Manual on Professionalism 155-157 (1992); McAuliffe, Arizona Civil Rules Handbook - 1999 Edition (West Group 1999) pp. 551-559

AZ-ER 3.5(b) provides that a lawyer shall not communicate on an ex parte basis with a judge, juror, prospective juror or an official of a tribunal "except as permitted by law." In fact, Canon 3(b)(7) of the Arizona Code of Judicial Conduct, Rule 81, Rules of the Arizona Supreme Court, provides that a judge may not initiate, permit or consider ex parte communications except under carefully delineated circumstances. The Committee has held, in Arizona Ethics Opinion No. 87-02, that it is improper for a lawyer to communicate ex parte with an administrative law judge concerning a case pending before that judge, regardless of whether it is the judge or the attorney who initiates the communication. The Committee elaborated on this in Arizona Ethics Opinion No. 87-17, where it held that an administrative law judge without a secretary or office staff is not permitted to communicate on an ex parte basis with a party to litigation pending before that judge, even if the communication only concerns a procedural matter. In Arizona Ethics Opinion No. 90-20, however, the Committee concluded that communications with a judicial officer on matters wholly unrelated to litigation matters pending before that officer's court are not ex parte communications for the purposes of this Rule.

The general rule, thus, as stated by the Court of Appeals, citing both former DR 7-110 and ER 3.5, is that:

A rule of professional responsibility provides that, in the absence of opposing counsel, a member of the bar should neither communicate with nor argue to a judge except in open court upon the merits of a contested matter pending before that judge.

McElhanon v. Hing, 151 Ariz. 386, 401, 728 P.2d 256, 271 (App. 1985), affirmed in part and vacated in part, 151 Ariz. 403, 728 P.2d 273 (1986). In that case, the Court held that an ex parte conference with one lawyer, initiated by the judge to ease tensions that had arisen during an in-chambers conference held the previous day, but which degenerated into an acrimonious discussion of the credibility of the lawyer's opposing counsel and witnesses, was manifestly improper and required reversal. The Supreme Court subsequently agreed that the ex parte communication was improper, but ruled that reversal was required only where prejudice was shown, and found that none had been. The Supreme Court observed that ex parte communications with a judge are prohibited for several reasons, the principal one being that they "cast doubt upon the adversary system and give the appearance of favoritism." McElhanon v. Hing, 151 Ariz. 403, 411, 728 P.2d 273, 281 (1986). In State ex rel. Corbin v. Arizona Corporation Commission, 143, Ariz. 219, 693 P.2d 362 (App. 1984), the Court held that ex parte communications are also prohibited in quasi-judicial administrative proceedings such as rate-making by the Arizona Corporation Commission.

Violations of the proscription upon ex parte communications, except as permitted by law, may lead to the imposition of discipline. In Matter of Ziman, 174 Ariz. 61, 847 P.2d 106 (1993), the Supreme Court approved the suspension of a lawyer for a variety of ethical violations, including an incident in which the lawyer had contacted an arbitrator in a matter the lawyer was handling, after the arbitrator had rendered decision, and engaged in an ex parte conversation, during the course of which the lawyer had made a "profane and insulting remark." Discipline was also imposed for a lawyer's ex parte communication with a court about alleged perjury by an opponent's witness. In re Evans, 162 Ariz. 197, 782 P.2d 315 (1989).

As noted earlier, AZ-ER 3.5(b) only proscribes ex parte communications "except as permitted by law." There are a variety of procedural and other rules which either explicitly, or by necessary implication, authorize ex parte communications. Thus, Canon 3 (B)(7) of the Arizona Code of Judicial Conduct, Rule 81, Rules of the Arizona Supreme Court, specifies a number of circumstances where it is proper for a judge to initiate, permit or consider ex parte communications. In a litigation context, these are generally limited to communications for scheduling or administrative purposes, or for emergencies, where the judge reasonably believes that no party will gain a procedural or tactical advantage and the judge promptly notifies other parties to the action that the communication has taken place and of its substance. In addition, Canon 3(B)(7)(e) allows a judge to "initiate or consider any ex parte communications when expressly authorized by law to do so." See San Carlos Apache Tribe v. Bolton,194 Ariz.68, 977 P.2d 790 (1999).

The Arizona Rules of Civil Procedure contain a number of provisions which permit ex parte communications with a court concerning a pending matter. Rule 6(b), Ariz.R.Civ.P. implicitly authorizes ex parte requests for the enlargement of time, if made before the expiration of the period to be enlarged. Rule 16(a)(5), Ariz.R.Civ.P. permits the court at a settlement conference to engage in ex parte communications with the parties to facilitate settlement of the case, but only with the consent of all those participating in the conference. A similar provision is contained in Rule 2(B) of the Uniform Rules of Practice for Medical Malpractice Cases. Rule 65(d), Ariz.R.Civ.P. permits the application for and issuance of a temporary restraining order, without notice to the adverse party, but only if (1) specific facts are established, by affidavit or by a verified pleading, that the party seeking the order will suffer immediate and irreparable injury before the adverse party can be given an opportunity to be heard, and (2) the applicant's attorney files a written certification as to either the efforts that have been made to provide notice or the reasons notice should not be required.

Rule 66(a), Ariz.R.Civ.P. contemplates situations where the appointment of a receiver can be secured on an ex parte basis. Specifically, under the Rule, the Court may consider an application for the appointment of a receiver which has not been served on the adverse party, if (1) at least ten (10) days after filing the application, the applicant files an affidavit showing that, despite all reasonable efforts having been made, personal service on the adverse party cannot be made within the state or by direct service out of state; or (2) there is substantial cause for appointing a receiver before service can otherwise be made. If difficulties in securing service form the basis for the request for the appointment of a receiver without notice, then the applicant must wait ten (10) days after filing the original application before making such a request. This application must be verified and must be supported by an affidavit setting forth the nature of the efforts made to secure service. On the other hand, if the justification is the existence of "substantial cause" for the appointment of a receiver without notice, then the applicant may make such a request immediately. The application must, however, be verified. It has been held that the appointment of a receiver without notice does not violate due process. Sato v. First National Bank of Arizona, 12 Ariz.App. 263, 469 P.2d 829 (1970).

Finally, Rule 5 of the Rules of Procedure for Special Actions permits a court in which a Petition for Special Action is filed to issue ex parte interlocutory stays in the same manner, and subject to the same limitations, as apply to the issuance of temporary restraining orders without notice under Rule 65(d), Ariz.R.Civ.P.

Communications With Trial Jurors

As noted, AZ-ER 3.5(b) prohibits, inter alia, any ex parte communications with jurors or prospective jurors unless authorized by law or court order. New AZ-ER 3.5(c) specifically addresses communications with jurors and prospective jurors after the jury has been discharged. Under that Rule, such communications are prohibited if (and presumably permitted unless) (1) the communication is prohibited by law or court order, (2) the juror has made known to the lawyer a desire not to communicate, or (3) the communication involves misrepresentation, coercion, duress or harassment." The Comment essentially reiterates the proscriptions of the Rule itself:

A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the examination.

Comment, AZ-ER 3.5, š 3.

3.5:400   Intentional Disruption of a Tribunal

AZ-ER 3.5(c) provides that a lawyer is not to engage in conduct intended to disrupt a tribunal. As the Comment to the Rule explains:

The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Comment, AZ-ER 3.5, š 4. There are no other Arizona authorities which elaborate upon these principles or explain their application to specific situations.

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Arizona Rule

3.6:101      Model Rule Comparison

AZ-ER 3.6 has been rewritten in an effort to specify the proper boundaries between proper and improper extrajudicial statements in a fashion that addresses the concerns that lead the Supreme Court, in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), to declare unconstitutional a Rule in Nevada that was identical to former AZ-ER 3.6.

AZ-ER 3.6 and its accompanying Comment are identical to MR 3.6 and its accompanying Comment.

3.6:102      Model Code Comparison

AZ-ER 3.6 and DR 7-107 are substantially similar with a few exceptions. First, AZ-ER 3.6 adopts the "substantial likelihood of materially prejudicing an adjudicative proceeding" to identify impermissible conduct. Second, AZ-ER 3.6 transforms the detailed particulars of DR 7-107 into an illustrative compilation giving fair notice of conduct ordinarily posing unacceptable dangers to the fair administration of justice. Third, AZ-ER 3.6 omits DR 7-107(C)(7), which provided that a lawyer could reveal "at the time of seizure, a description of the physical evidence seized, other than a confession, admission or statement."

3.6:200   Improper Extrajudicial Statements

AZ-ER 3.6 represents the attempt of the Arizona Rules of Professional Conduct to draw the line between what is proper, and what is improper, commentary by lawyers about matters that are, or are soon to be, involved in pending judicial proceedings. As the Comment to the Rule explains:

It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a free trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

Comment, AZ-ER 3.6, š 1.

AZ-ER 3.6 generally prohibits a lawyer from making "an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." The 2003 amendment to the Rule abandoned the former approach of specifying in the rule categories of information that were likely to have prejudicial impact on a proceeding. AZ-ER 3.6(b) now specifies categories of information that a lawyer may properly incorporate into an extrajudicial statement. In all cases, these are:

1. the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

2. information contained in a public record;

3. that an investigation of the matter is in progress;

4. the scheduling or result of any step in litigation;

5. a request for assistance in obtaining evidence and information necessary thereto; and

6. a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.

In addition, in criminal cases, a lawyer may properly include in an extrajudicial statement the following:

7. the identity, residence, occupation and family status of the accused;

8. if the accused has not been apprehended, information necessary to aid in apprehension of that person;

9. the fact, time and place of arrest; and

10. the identity of the investigating and arresting officers or agencies and the length of the investigation.

The 2003 amendment now relegates to paragraph 5 of the Comment to the Rule the delineation of subject matters which, if addressed in an extrajudicial statement, "are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other matter that could result in incarceration." These include:

1.) the character, credibility, reputation or criminal record of a party, witness or suspect in a criminal proceeding, or the identity of a witness, or the expected testimony of a party or witness;

2.) in criminal cases, or proceedings that could lead to incarceration, the possibility of a guilty plea, or the existence or contents of any confession, admission or statement given by a defendant or suspect, or a defendant's or suspect's failure or refusal to make a statement;

3.) the performance or results of any examination or test, the failure or refusal of a person to submit to an examination or test, or the identity or nature of physical evidence to be presented;

4.) opinions about the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could lead to incarceration;

5.) information which a lawyer knows or reasonably should know is likely to be inadmissible as evidence and which, if disclosed, would create a substantial risk of prejudicing an impartial trial; and

6.) the fact that a defendant has been charged with a crime, unless that statement is accompanied by a statement that the charge is merely an accusation and the defendant is presumed innocent unless and until proven guilty.

In addition, as paragraph of the Comment notes, special rules of confidentiality may pertain in juvenile, domestic relations and mental disability proceedings, among others, which lawyers are also required to observe by AZ-ER 3.4(c). See discussion in Section 3.4:400, supra.

In State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1984), cert. denied 474 U.S. 1110, a prosecutor in a high profile criminal case was found to have violated former DR 7-107 by granting an interview and being photographed for a magazine article in which the prosecutor praised the victim. The Court, however, finding that there was no a reasonable likelihood that the misconduct prejudiced the defendant, affirmed the verdict.

In Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (1984) (in banc), the court held that lawyers were not absolutely privileged to publish oral and written communications to a newspaper reporter in a "press conference" setting because the reporter had no relation to or role in the litigation and was merely a concerned observer; the court also held that the lawyers' actions were contrary to DR 7-107(G) which prohibits a lawyer from making extra-judicial statements he expects to be disseminated which will likely interfere with the fairness of an adjudicative proceeding.

3.6:300   Permissible Statements

As noted earlier, AZ-ER 3.6(b) now specifies categories of information that a lawyer may properly incorporate into an extrajudicial statement. In all cases, these are:

1. the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

2. information contained in a public record;

3. that an investigation of the matter is in progress;

4. the scheduling or result of any step in litigation;

5. a request for assistance in obtaining evidence and information necessary thereto; and

6. a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.

In addition, in criminal cases, a lawyer may properly include in an extrajudicial statement the following:

7. the identity, residence, occupation and family status of the accused;

8. if the accused has not been apprehended, information necessary to aid in apprehension of that person;

9. the fact, time and place of arrest; and

10. the identity of the investigating and arresting officers or agencies and the length of the investigation.

In Cox Arizona Publications v. Collins, 175 Ariz. 11, 852 P.2d 1194 (1993), the Supreme Court held that a prosecutor's distribution of public records to reporters was not necessarily an "extrajudicial statement," and the contents of public records were generally exempt from the ethical restriction in any event. In State v. Agnew, 132 Ariz. 567, 647 P.2d 1165 (App. 1982), the Court of Appeals, construing former DR 7-107(D), held that it was proper to provide the press with a copy of an amended indictment and to explain the charges contained therein.

3.6:400   Responding to Adverse Publicity

Arizona has now adopted AZ-ER 3.6(c) which addresses what a lawyer may and may not do in responding to adverse publicity concerning a matter in which the lawyer represents a party. That Rule provides that: "Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity." As the Comment to this aspect of the Rule explains:

Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

Comment, AZ-ER 3.6, š 7.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Arizona Rule

3.7:101      Model Rule Comparison

Only editorial changes were made to the Rule itself in 2003. Language was added to the Comment to specify that the tribunal also may object to a lawyer serving as both advocate and witness if the tribunal believes that would cause confusion.

AZ-ER 3.7 and the accompanying Comment are identical to MR 3.7 and the accompanying Comment.

3.7:102      Model Code Comparison

DR 5-102(A) prohibited a lawyer, or the lawyer's firm, from serving as an advocate if the lawyer "learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client." DR 5-102(B) provided that a lawyer, and the lawyer's firm, could continue representation "if the lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client . . . until it is apparent that his testimony is or may be prejudicial to his client." The Model Rule dropped this distinction between the situations where the lawyer is called as a witness on behalf of the client and where the lawyer is or may be a witness other than on behalf of the client.

DR 5-101(B) permitted a lawyer to testify while representing a client: "(1) If the testimony will relate solely to an uncontested matter. (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. (3) If the testimony will relate solely to the nature and value of services rendered in the case by the lawyer or his firm to the client. (4) As to any matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case." This delineation of the circumstances under which a lawyer who is a witness may also serve as an advocate are essentially identical to those delineated in MR and AZ-ER 3.7(a)(1), (2) and (3).

The former Code did not have a provision corresponding to AZ-ER 3.7(b), which provides that disqualification of a lawyer from serving as an advocate because that lawyer will be a material witness on a contested matter is not "infectious," and does not preclude another lawyer in the disqualified lawyer's firm from serving as advocate, provided that doing so would not constitute a conflict of interest under either AZ-ER 1.7 or AZ-ER 1.9.

3.7:200   Prohibition of Advocate as Witness

AZ-ER 3.7(a) prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness, except in carefully delineated circumstances. The considerations that support a prohibition upon a lawyer acting in the dual role of advocate and witness was explained by the Supreme Court in Cottonwood Estates, Inc. v. Paradise Builders, Inc., 128 Ariz. 99, 624 P.2d 296 (1981):

The attorney who testifies diminishes his effectiveness as advocate as well as his effectiveness as a witness . . . Like any witness, the attorney is subject to cross-examination on any relevant matter, Ariz.R.Evid. 611, including the professional and financial interest in the outcome of the litigation, . . . and impeachment by the usual methods of demonstrating bias and prejudice . . . The advocate who testifies places himself in the position of being able to argue his own credibility. This special witness can take the stand, objectively state the facts from personal knowledge, then press home those facts by argument to the jury. Our belief is that an adversary system works best when the roles of the judge, of the attorneys, and of the witnesses are clearly defined. Any mixing of those roles inevitably diminishes the effectiveness of the entire system.

Id., 128 Ariz. at 102-03, 624 P.2d at 299-300 (citations omitted). The Supreme Court has also suggested that the prohibition may not be limited to testimony to be offered by the lawyer/advocate at trial. In State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991), the Supreme Court was highly critical of the conduct of a prosecutor who independently and personally investigated the possible misconduct of a trial juror, and then testified at a proceeding to disqualify that juror, because "the prosecutor effectively made himself a witness in the case." Id., 170 Ariz. at 55, 821 P.2d at 746.

AZ-ER 3.7 does permit a lawyer who is also a trial witness to testify, and remain as counsel in the case, in three instances: (1) where the testimony relates to an uncontested matter, (2) where the testimony of the lawyer will relate to the nature and value of the legal services rendered in the case, and (3) where the client would suffer a substantial hardship if the lawyer were to be disqualified. In cases covered by the first exception, the lawyer is not testifying to contested matters, and there is no significant risk to the client's case. In cases covered by the second exception, permitting the lawyer to testify avoids the need for a second trial with new counsel. Additionally, the judge generally will have firsthand knowledge of the subject matter of the testimony and there will, accordingly, be less dependence on the adversary process to test the credibility of the testimony.

The third exception, however, does pose the risk that the client's case will be presented, at least in part, through the testimony of a witness with an obvious interest and bias, and does place the lawyer in the position of being subject to attacks on his or her credibility. As the Comment to the Rule points out, when the question arises whether an advocate may also offer testimony on contested matters, there must be some assessment of whether the opposing party will be prejudiced thereby. That assessment should include examination of "the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with other witnesses." Comment, AZ-ER 3.7, š 4. Even where a risk has been identified, consideration must also be given to the effect that the lawyer's disqualification may have on the client. Id. A relevant factor in that assessment is whether one or both parties could reasonably have foreseen the probability that the lawyer would be a witness. Id. Thus, in Arizona Ethics Opinion No. 87-10, the Committee on the Rules of Professional Conduct held that an attorney defending a client on a charge of driving under the influence of alcohol, who had represented the same client on a similar charge previously, must seek to withdraw if subpoenaed to testify about the prior conviction. In State v. Caldwell, 117 Ariz. 464, 573 P.2d 864 (1977), where criminal defense counsel sought to testify to impeach the testimony of a prosecution witness, the court imposed upon defense counsel the burden of proposing a solution to the issue of whether that appearance as a witness would require withdrawal.

AZ-E3.7(a) provides that a lawyer can be disqualified only if the lawyer is a "necessary witness." See Cottonwood Estates, Inc. v. Paradise Builders, Inc., supra. As the Court of Appeals has observed: " Thus there is a dual test for δnecessity.' First the proposed testimony must be relevant and material. Then it must also be unobtainable elsewhere." Security General Life Ins. Co. v. Superior Court In and For Yuma County, 149 Ariz. 332, 335, 718 P.2d 985, 988 (1986). The mere declaration by another party of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that lawyer could give relevant testimony. Id. There must also be a determination that the evidence to be sought from opposing counsel is material to a determination of the issues and not obtainable elsewhere. Id. Where the court determines that there will be no prejudice, danger or harm from the lawyer testifying, however, withdrawal will not be required. Cottonwood Estates, Inc. v. Paradise Builders, supra.

In Arizona Ethics Opinion No. 2000-09, the Committee on the Rules of Professional Conduct ("the Committee") addressed an inquiry as to whether it would represent a conflict of interest for a municipal prosecutor to also work as a reserve peace officer for another municipality or for the County Sheriff. Although the Committee concluded that each situation in which the inquiring lawyer might become involved in those dual roles had to be analyzed on a case-by-case basis, it pointed out that, under AZ-ER 3.7, a prosecutor who may be a witness in a case which resulted from the prosecutor's activities as a peace officer cannot serve as the prosecutor in the case.

In Arizona Ethics Opinion No. 03-01, the Committee held that it was not necessarily unethical for a lawyer to verify a pleading, provided an applicable rule or statute did not require that the verification be by the client or party. The Committee cautioned, however, that before doing so, the lawyer should either know, or believe on the basis of a reasonably diligent inquiry, that the assertions in the pleading are true. The Committee also warned lawyers to be sensitive to the fact that verification of a pleading could make the lawyer a witness and result in the lawyer's disqualification under this Rule.

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

AZ-ER 3.7(b) permits a lawyer to act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by AZ-ER 1.7 or AZ-ER 1.9. This represents a departure from the regime mandated by the former Code of Professional Responsibility under which the disqualification of a lawyer who was to be a material witness was imputed to other lawyers in that lawyer's firm as well. The exception is not, however, an open-ended one. The Comment to AZ-ER 3.7 states that, if a lawyer in a firm would be disqualified from serving as both an advocate and a witness because to do so would represent a conflict of interest, then that disqualification is imputed and applicable to other lawyers in that lawyer's firm by reason of AZ-ER 1.10. That would be the case, for example, where the lawyer/witness' testimony will conflict with the testimony of the client. See Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 742 P.2d 292 (App. 1987).

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Arizona Rule

3.8:101      Model Rule Comparison

The 2003 amendments added a new paragraph (e) which sets limits on when a prosecutor may subpoena a lawyer in a grand jury or other criminal proceeding to testify about a past or present client. Language was also added to paragraph (f) to limit extrajudicial statements by prosecutors except where such statements inform the public about the nature and extent of their actions and serve a legitimate law enforcement purpose.

AZ-ER 3.8 and MR 3.8 are now identical. The Comments to the two Rules, however, contain some minor differences. Paragraph 2 of the Comment to AZ-ER 3.8 does not contain the first sentence of that paragraph of the Comment to MR 3.8. The first sentence of paragraph 6 of the Comment to MR 3.8 is not contained in that paragraph of the Comment to AZ-ER 3.8.

3.8:102      Model Code Comparison

DR 7-103(A) of the former Code of Professional Responsibility provided that "[a] public prosecutor . . . shall not institute . . . criminal charges when he knows or it is obvious that the charges are not supported by probable cause." DR 7-103(B) provided that "[a] public prosecutor . . . shall make timely disclosure . . . of the existence of evidence, known to the prosecutor . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment."

3.8:200   The Decision to Charge

AZ-ER 3.8(a) provides that a prosecutor in a criminal case must refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. As the Comment to the Rule explains:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of ER 8.4.

Comment, AZ-ER 3.8, š 1. The special role that the prosecutor occupies in the criminal justice system, and the obligations attendant upon that role, were an important factor in the Court's decision in State ex rel. Romley v. Superior Court In and For Maricopa County, 181 Ariz. 378, 891 P.2d 246 (App. 1995), where the issue presented was whether the Maricopa County Attorney's Office had a conflict of interest arising out of the fact that it was simultaneously prosecuting one case against several defendants, and a separate case against the victim in the other case. The Court concluded that no conflict of interest was presented:

Given this unique role of a prosecutor in a criminal action, we hold that a prosecutor does not "represent" the victim as a "client" in a way that runs afoul of the Rules of Professional Conduct. The prosecutor has no incentive to induce the victim in this case to "please" the prosecutor in a way that would prejudice defendants' right to a fair trial. We will not presume that the prosecutor will seek defendants' convictions at all costs, when his duty is to see that justice is done on behalf of both the victim and the defendants.

Id., 181 Ariz. at 382, 891 P.2d at 250.

While there are no Arizona authorities that elaborate upon the obligations imposed by AZ-ER 3.8(a) in deciding whether to charge an individual or entity with a crime, the Supreme Court has held that the Rule's obligations do apply to decisions concerning whether to seek the death penalty in cases where it is authorized. Thus, in Holmberg v. De Leon, 189 Ariz. 109, 938 P.2d 1110 (1997), the Supreme Court concluded that prosecutors had failed to give the defendant notice of an intent to seek the death penalty, as required by Rule 15(g)(1) of the Arizona Rules of Criminal Procedure. In discussing the reasons for the notice requirement, the Court observed:

A decision to seek the death penalty requires careful and thoughtful consideration of our death penalty statute, A.R.S. § 13-703, our cases construing it, and all evidence relevant to aggravating and mitigating circumstances. A decision to seek the death penalty sets in motion a series of significant effects.

*   *   *   *   *   *

The prosecutor is also affected. A decision to seek the death penalty ensures that, if actually imposed, the future course of the case will be characterized by the layered complexity of both state and federal post-conviction proceedings. And, given the prosecutor's special responsibility as a minister of justice and not simply an advocate, ER 3.8, Rule 42, Sup. Ct., the decision cannot be undertaken lightly.

Id., 189 Ariz. at 110-111, 938 P.2d at 111-1112. See also, State v. White, 194 Ariz. 344, 982 P.2d 819, 832 (1999) (Zlaket, C.J. and Feldman, J., dissenting)

Finally, while recognizing that disciplinary proceedings are not criminal in nature and bar counsel is not, in the strictest sense, a prosecuting attorney, the Supreme Court has suggested that, in pursuing disciplinary charges and complaints, bar counsel has obligations at least analogous to those imposed by ER 3.8. Matter of Owens, 182 Ariz. 121, 126, 893 P.2d 1284, 1289, fn.6 (1995).

In Arizona Ethics Opinion No. 2000-09, the Committee on the Rules of Professional Conduct ("the Committee") addressed an inquiry as to whether it would represent a conflict of interest for a municipal prosecutor to also work as a reserve peace officer for another municipality or for the County Sheriff. Although the Committee concluded that each situation in which the inquiring lawyer might become involved in those dual roles had to be analyzed on a case-by-case basis, it pointed out that, under AZ-ER 3.7, a prosecutor who may be a witness in a case which resulted from the prosecutor's activities as a peace officer cannot serve as the prosecutor in the case.

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

3.8:300   Efforts to Assure Accused's Right to Counsel

AZ-ER 3.8(b) requires prosecutors in criminal cases to make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel. As the Comment to the Rule explains:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of ER 8.4.

Comment, AZ-ER 3.8, š 1. There are no Arizona authorities that elaborate upon this issue. See also discussion in Section 3.8:400, infra.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

AZ-ER 3.8(c) provides that prosecutors in criminal cases must not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing. The Comment to this aspect of the Rule explains explains that it does not "forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence." There are no Arizona authorities that elaborate upon this issue.

While the Comment also states that AZ-ER 3.8(c) does not apply to an accused appearing pro se with the approval of the tribunal, in State v. Cornell, 179 Ariz. 314, 878 P.2d 1352 (1994), the Supreme Court was very critical of, and reported to the State Bar, the conduct of the prosecutor, al least in part because it perceived that the misconduct occurred because the prosecutor was attempting to take unfair advantage of the fact that defendant was representing himself. Citing several authorities, including AZ-ER 3.8, the Court observed:

It is also true, however, that a defendant's invocation of the right to self-representation does not signal playtime for prosecutors. Prosecutors have a duty to do more than convict defendants. They have a duty to see that defendants get a fair trial.

Id., 179 Ariz. at 311, 878 P.2d at 1369 (citations omitted).

3.8:500   Disclosing Evidence Favorable to the Accused

AZ-ER 3.8(d) imposes upon prosecutors an ethical obligation to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of his responsibility by a protective order of the tribunal". The Comment to this aspect of the Rule explains that a prosecutor may permissibly seek a protective order from the tribunal "if disclosure of information to the defense could result in substantial harm to an individual or to the public interest." Comment, AZ-ER 3.8, š 3. More extensive and, in many instances, far more specific disclosure obligations are imposed upon prosecutors by Rule 15.1 of the Arizona Rules of Criminal Procedure.

The ethical obligation imposed by AZ-ER 3.8(d) was addressed by the Committee on the Rules of Professional Conduct ("the Committee") in its Arizona Ethics Opinion No. 94-07, where the Committee was asked to determine whether a prosecutor was ethically required to disclose certain information to an accused in three separate hypothetical situations. Before discussing the specific questions posed to it, the Committee stressed that the disclosure duty imposed by AZ-ER 3.8(d) is broader than the obligations imposed upon prosecutors by the Due Process Clause of the United States Constitution, as construed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) and its progeny, relying for that conclusion on the following excerpt from the ABA Comments to MR 3.8(d):

A prosecutor's ethical obligation, though derived from constitutional mandates, seeks to preserve public confidence in the prosecution function as well as to avoid constitutionally significant harm to the defendant. Thus, Rule 3.8(d) requires disclosure of all information that may tend to negate the defendant's guilt, mitigate the offense, or reduce punishment.

The first hypothetical situation presented for the Committee's consideration assumed a defendant charged with the felony of aggravated driving while under the influence to whom the Deputy County Attorney handling the prosecution had offered a stipulated sentence in exchange for a guilty plea. In the interim, however, the officer who had made the underlying arrest, who had observed the defendant's behavior at the scene, administered the field sobriety and breath tests and testified at the preliminary hearing, had passed away. The question put to the Committee was whether the Deputy County Attorney had an obligation to disclose this development to the defendant and, if so, when. The Committee noted that disclosure of the officer's death might be required by AZ-ER 3.8(d), but found it unnecessary to decide that question, because it felt that disclosure was required by Rule 15(a)(1) of the Arizona Rules of Criminal Procedure, and the prosecutor had an ethical obligation, under AZ-ER 3.4(c) to comply with the requirements of the law.

The second situation presented assumed a defendant charged with possession of narcotic drugs for sale, based upon the results of execution of a search warrant. After offering the defendant a stipulated sentence in exchange for a guilty plea, the Deputy County Attorney learns that the drugs seized from the defendant had been inadvertently destroyed by the police department, and the Committee was asked to opine whether the prosecutor had an ethical obligation to disclose that development to the defendant and, if so, when. Again, the Committee felt it unnecessary to determine whether disclosure was required by AZ-ER 3.8(d), because it felt that disclosure of the destruction of the evidence was necessary to comply with the prosecutor's obligations under Rule 15.1(a)(4) of the Arizona Rules of Criminal Procedure and AZ-ER 3.4. The Committee noted that disclosure should be made as soon as possible after the prosecutor learns of the destruction of the evidence.

The final situation presented to the Committee for its consideration assumed a defendant charged with driving while under the influence of drugs, based in large part on a urine sample taken from the defendant which had tested positive for the presence of methamphetamine. All of the sample, however, had been destroyed during the police's testing and the question presented was whether the prosecutor had an ethical obligation to disclose that fact to the defense. The Committee noted that disclosure would clearly be required if a written request had been made under Rule 15.1(c) of the Arizona Rules of Criminal Procedure, but the Committee was asked to assume that no such written request had been made. The Committee concluded that, even in the absence of such a written request, the lack of the original sample being available to the defense for retesting was sufficiently exculpatory to call for disclosure under AZ-ER 3.8(d).

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

AZ-ER 3.8(e) requires prosecutors to "exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under ER 3.6 or this Rule." Such an obligation would probably arise under AZ-ER 5.3 in any event. As the Comment to this aspect of the Rule explains:

Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals.

Comment, AZ-ER 3.8, š 6.

3.8:700   Issuing a Subpoena to a Lawyer

New AZ-ER 3.8(e) provides that a prosecutor may not issue a subpoena to a lawyer to present evidence concerning a past or present client in a grand jury or other criminal proceeding, unless the prosecutor reasonably believes that (1) the information sought is not protected by any applicable privilege; (2) the evidence is essential to the successful completion of an ongoing investigation or prosecution; and, (3) there is no other feasible alternative to obtain the information. There are no Arizona authorities as yet addressing this issue.

3.8:800   Making Extrajudicial Statements

AZ-ER 3.8(f) provides that a prosecutor must refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused, except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose. Even prior to Arizona's adoption of this subpart of the Rule, the Court in Cox Arizona Publications, Inc. v. Collins, 169 Ariz. 189, 818 P.2d 174 (App. 1991) noted that AZ-ER 3.6 and 3.8, read together, impose upon prosecutors an ethical obligation to avoid making prejudicial extrajudicial pretrial statements and disclosures.

In that regard, AZ-ER 3.6(a), which applies to prosecutors as well, provides that a lawyer may not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. See discussion in Sections 3.6:200, 3.6:300 and 3.6:400, supra.

3.8:900   Peremptory Strikes of Jurors

Neither AZ-ER 3.8 nor the accompanying Comment address specifically the issue of a prosecutor's exercise of peremptory challenges. As discussed in Sections 3.8:200 and 3.8:300, supra, however, AZ-ER 3.8 has been construed as imposing upon prosecutors an obligation to ensure that criminal defendants receive a fair trial. It is now settled, however, that peremptory strikes may not be used by either prosecutors or defense counsel on the basis of either race or gender, in either civil or criminal trials. See J.E.B. v. Alabama, 511 U.S. 127, 128 L.Ed.2d 89, 114 S.Ct. 1419 (1994); Georgia v. McCollum, 505 U.S. 42, 120 L.Ed.2d 33, 112 S.Ct. 2348 (1992); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 114 L.Ed.2d 660, 111 S.Ct. 2077 (1991); Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 (1986). The Court of Appeals has now held that the rule in Batson v. Kentucky, supra, applies not only where a prosecutor affirmatively exercises available peremptory strikes, but also where the prosecutor declines to do so, with the effect that minorities at the bottom of the jury panel are excluded. State v. Paleo, 197 Ariz. 562, 5 P.3d 276 (App. 2000).

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Arizona Rule

3.9:101      Model Rule Comparison

The amendments made to the Rule clarify that, if a lawyer is representing a client in a nonadjudicative proceeding, before an administrative agency or the Legislature, the lawyer must disclose the lawyer's representative capacity.

AZ-ER 3.9 and its accompanying Comment are identical to MR 3.9 and its accompanying Comment.

3.9:102      Model Code Comparison

There was no direct counterpart to AZ-ER 3.9 in the Model Code of Professional Responsibility. Former EC 7-15 imposed upon lawyers appearing before administrative agencies a continuing duty to advance their clients' cause within the bounds of the law. Former EC 7-16 required lawyers to comply with applicable laws and regulations when appearing in connection with proposed legislation, and former EC 8-5 forbade fraudulent, deceptive or otherwise illegal conduct by lawyers participating in a proceeding before a legislative body.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

When appearing before a legislative or administrative tribunal in a non-adjudicative proceeding on behalf of a client, a lawyer must disclose that he or she is appearing in a representative capacity. The lawyer's conduct as a representative of a client before a legislative or administrative tribunal must conform generally to those standards applicable to appearances before a judicial tribunal, and is expected to deal with the tribunal honestly and in conformance with the applicable rules of procedure for that tribunal. A lawyer remains subject to the ethical rules governing the profession regardless of the context in which the lawyer acts. As the Comment to the Rule notes:

Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

Comment, AZ-ER 3.9, š 2. The Comment also points out that the Rule does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency. There are no Arizona authorities which elaborate upon these principles.

On a tangentially related issue, in Arizona Ethics Opinion No. 93-09, the Committee on the Rules of Professional Conduct addressed the issue whether it represented a conflict of interest for a lawyer who was also a legislator, or members of that lawyer-legislator's firm, to engage in lobbying activities on behalf of clients before the legislature. The Committee held that there was no per se prohibition on a lawyer-legislator also engaging in lobbying activities on behalf of clients, but noted that the lawyer-legislator's duties to the public or to constituents might in certain circumstances represent a responsibility that might materially limit the lawyer's ability to lobby for a client. If the lawyer-lobbyist concludes that representation of a client for lobbying purposes will be adversely affected by the fact that the lawyer is also a legislator, then neither the lawyer involved nor any member of the firm with which that lawyer is associated may accept that engagement.