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End-of-life notice: American Legal Ethics Library

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

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

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arizona Legal Ethics

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of Arizona Rule

4.1:101      Model Rule Comparison

The 2003 amendment made only one change to the Rule itself, eliminating the phrase "to a third person" from paragraph (b). The Comment was expanded to provide additional guidance regarding the lawyer's duty of candor and the prohibition on assisting a client's crime or fraud.

AZ-ER 4.1 and its accompanying Comment are substantially identical to MR 4.1 and its accompanying Comment. The only difference is that the Comment to MR 4.1 does not contain the final sentence of paragraph 3 of the Comment to AZ-ER 4.1.

4.1:102      Model Code Comparison

AZ-ER 4.1(a) is substantially similar to DR 7-102(A)(5). That Rule provided that: "[I]n his representation of a client, a lawyer shall not . . . knowingly make a false statement of law or fact." Former DR 7-102(A)(3) provided that a lawyer shall not "conceal or knowingly fail to disclose that which he is required by law to reveal." AZ-ER 4.1(b) imposes an obligation that is roughly equivalent to that, but is somewhat more limited and considerably more precise.

4.1:200   Truthfulness in Out-of-Court Statements

ER 4.1(a) prohibits a lawyer from knowingly making a false statement of material fact or law to a third person during the course of representation of a client. The Rule has also been applied to false statements of fact made to courts and other tribunals. Thus, in Matter of Higgins, 180 Ariz. 396, 884 P.2d 1094 (1994), the Court found that respondent Higgins had violated AZ-ER 4.1(a) when, in connection with the presentation of an ex parte motion seeking the disbursement to his client of certain funds from an escrow count, Higgins had falsely represented to the Court that opposing counsel had approved the granting of the motion. Applying AZ-ER 4.1(a) to that situation creates some degree of overlap between it and AZ-ER 3.3. Violations of AZ-ER 4.1(a) are grounds for the imposition of discipline. Matter of Wurtz, 177 Ariz. 586, 870 P.2d 404 (1994); Matter of Blankenburg, 143 Ariz. 365, 694 P.2d 195 (1984). For example, in Matter of Duckworth, 185 Ariz. 197, 914 P.2d 900 (1996), the Court approved the imposition of disciplinary sanctions on a lawyer who, in connection with a land transaction between the lawyer's client and the Navajo Tribe, had provided the Tribe, on behalf of his client, with opinion letters concerning the state of title of the land which contained false material statements of fact.

In Arizona Ethics Opinion No. 87-25, the Committee on the Rules of Professional Conduct ("the Committee") held that an attorney may not contact and interview a named but unserved defendant in litigation instituted by the attorney, without revealing the adversarial nature of the relationship that exists between the defendant and the attorney's client. Specifically, the Committee ruled that the attorney attempting to conduct such an interview must first inform the unserved defendant that he or she has been named as a defendant in an action, state that he or she represents the plaintiff, disclose that he or she is seeking information in connection with the pending action, provide a description of the case, and inform the unserved defendant that any disclosures made during the course of the interview will be considered voluntary. Id.

On the other hand, in Arizona Ethics Opinion No. 99-11, the Committee held that it was ethically permissible for a lawyer in private practice to direct a private investigator or "tester" to misrepresent his or her identity in contacting someone who is the subject of an investigation, but only if the misrepresentations are for the purpose of gathering facts before filing suit. The Committee indicated that its conclusion was heavily influenced by the fact that the use of such "testers" to establish evidence of discrimination had become relatively common practice, was often necessary, and had been approved by the courts. The Committee concluded it would be inconsistent with the intent of the Rules and the state of the law to interpret the Rules of Professional Conduct to prohibit the practice.

A somewhat related issue is whether it is proper for a lawyer to tape record conversations with, or interviews of, unrepresented third persons who might be witnesses in a case. The answer to this question has evolved. In Arizona Ethics Opinions Nos. 74-18 and 74-35, the Committee concluded that it was unethical to surreptitiously record conversations with witnesses or potential witnesses, or to encourage others (such as private investigators or paralegals) to do so. In the following year, however, the Committee issued Arizona Ethics Opinion No. 75-13, which authorized four exceptions to that rule against non-consensual recordings or conversations with, or interviews of, third-party witnesses: (1) where the lawyer was recording an utterance that was itself a crime, such as the offer of a bribe, (2) where the conversation recorded was of an informant or a person under criminal investigation and the recording was done to protect the lawyer or the lawyer's investigator, (3) where the recording was specifically authorized by court order, court rule or statute, and (4) where the lawyer's motivation was to protect the lawyer or the lawyer's client from harm resulting from perjured testimony, but not where the intent was to secure impeachment evidence.

The issue was once again revisited by the Committee in its Arizona Ethics Opinion No. 90-02. Wherein it recognized that the distinctions drawn in its former Arizona Ethics Opinion No. 75-13 did not recognize the realities of the present day criminal justice system and might put criminal defense lawyers at a distinct disadvantage. Accordingly, Arizona Ethics Opinion No. 90-02 announced a rule that it was permissible for criminal defense attorneys to surreptitiously record conversations with and/or interviews of witnesses, even where the purpose was to obtain potential impeachment evidence. The Opinion was silent on what rule would prevail in the context of civil cases.

In Arizona Ethics Opinion No. 2001-04, 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.

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

AZ-ER 4.1(b) provides that a lawyer may not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. The Comment to this aspect of the Rule states that its purpose is to recognize "that substantive law may require a lawyer to disclose certain information to avoid being deemed to have assisted the client's crime or fraud." Both the Rule and the Comment provide that the disclosure obligation imposed by this Rule is subject to the obligation to maintain client confidences imposed by ER 1.6. Arizona, however, has adopted, as its AZ-ER 1.6, a version of the referenced Rule that differs significantly from MR 1.6, with the result that there may be many instances where the obligation to maintain client confidences under the Arizona Rule does not override the obligations imposed by AZ-ER 4.1.

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

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

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

Prior to 2003, AZ-ER 1.6 did not expressly address the subject of disclosure of confidential information in order to prevent financial loss. As earlier noted, however, AZ-ER 1.6(c) permits (but does not require) an attorney to reveal the intention of a client to commit a crime and the information necessary to prevent the crime. The language of this paragraph of the Rule is broad enough to encompass client crimes which, if perpetrated, would cause financial loss to the victim(s). The exception, however, applies only to future, and not past, crimes. Thus, an attorney may not reveal to a workers' compensation insurer, without the client's fully informed consent, the fact that the client's monthly compensation checks are in excessive amounts. Arizona Ethics Opinion No. 91-02. Even if the client's conduct in accepting and negotiating the checks constituted criminal conduct, it is not a future crime and may not be disclosed under Arizona Rule ER 1.6(c). Id.

AZ-ER 1.6(d) was amended, however, to add two new permissive disclosure exceptions in situations where the client is using or has used the lawyer's services to cause financial injury to third parties. AZ-ER 1.6(d)(1) and (2) now permit the lawyer to reveal information relating to the representation of a client "(1) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client is using or has used the lawyer's services" and "(2) to mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services."

In Arizona Ethics Opinion No. 88-08, the Committee on the Rules of Professional Conduct ("the Committee") responded to an inquiry from an attorney who was representing the wife in a domestic relations case, and has been informed by the wife (1) that she has surreptitiously recorded a conversation between her husband and opposing counsel, and (2) that the tape reveals that opposing counsel has advised the husband to dispose of a substantial amount of money received as a bonus. The Committee ruled that the attorney was not permitted to inform opposing counsel of the existence of the tape. In Arizona Ethics Opinion No. 87-22, the Committee held that an attorney may not divulge a client's name and address to parties who have potential claims against the client, even if the attorney-client relationship has ceased.

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

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Arizona Rule

4.2:101      Model Rule Comparison

The 2003 amendments made no changes to this Rule or the accompanying Comment.

The text of AZ-ER 4.2 is virtually identical to MR 4.2, with the exception that Arizona retained the reference to communications with "a party," while the Model Rule encompasses communications with "a person." The Comment to the Arizona Rule, however, only incorporates portions of the fourth and seventh paragraphs of the Comment that accompany MR 4.2, and adds at the end of its Comment a reworded version of the second paragraph of the Comment to the Model Rule.

4.2:102      Model Code Comparison

AZ-ER 4.2 is substantially identical to form DR 7-104(A)(1) of the Model Code.

4.2:200   Communication with a Represented Person

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

Under AZ-ER 4.2, in representing a client, a lawyer is prohibited from communicating about the subject of the representation with a party if the lawyer knows that the party is represented by another lawyer in the matter, unless the lawyer has the other lawyer's consent or is otherwise authorized by law to do so. The lawyer may not accomplish such communication indirectly, as through an investigator or other agent. ABA Informal Opinion 663. Where the "party" in question is a corporation or other form of organization, the Comment specifies that the prohibition upon ex parte communications extends to communications with current employees of the organization (1) who have management responsibility on behalf of the organization, or (2) whose acts or omissions in connection with the matter may be imputed to the organization, or (3) are persons whose statements may constitute an admission on the part of the organization.

In Arizona Ethics Opinion No. 2002-02, the Committee on the Rules of Professional Conduct ("the Committee") held that, by reason of this Rule, unless an administrative rule or statute required it, an attorney should not send copies of documents directly to an opposing party who is represented by counsel, without that counsel's consent, even if copies are contemporaneously sent to opposing counsel.

In Arizona Ethics Opinion No. 98-04, the Committee held that, where a parent corporation is represented by counsel in a matter, opposing counsel may not contact a current employee of a wholly-owned subsidiary of the parent company, without the consent of counsel for the parent, if (1) the employee in question has managerial responsibility on behalf of the organization, (2) the employee's actions may give rise to liability for the parent corporation, or (3) the employee's statements may constitute admissions by the parent. In Arizona Ethics Opinion No. 96-02, the Committee ruled that an attorney handling an action brought against a homeowner's association may communicate with general members of the association who are not board members or officers of the association, and not in a position to bind the association, without the prior consent or presence of counsel for the association.

In Arizona Ethics Opinion No. 87-25, the Committee held that it was not ethically improper, under AZ-ER 4.2, for a lawyer to contact a person who was, at the time of the contact, only potentially an adverse party and before an action is filed. Once an action is filed, however, it is ethically improper to contact an adverse party whom the lawyer knows to be represented in the matter. The Committee also noted, relying on AZ-ER 4.1 and 4.3, in addition to AZ-ER 4.2, that it would be improper for a lawyer to contact a person named as a party in an action filed by that lawyer but who has not yet obtained counsel (or who has not as yet been served) without disclosing to the person that he or she has been named as a party in an action.

Whether AZ-ER 4.2's prohibition of ex parte communications with representatives of represented organizational adversaries should apply to former employees or agents of an organizational adversary was not easily resolved in Arizona. When the issue was presented to the Committee on the Rules of Professional Conduct, the Committee divided evenly on the issue and issued Arizona Ethics Opinion No. 89-05, which was in actuality two Alternative Opinions reaching different conclusions on the subject. The controversy was finally resolved by the Opinion of the Court of Appeals in Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (App. 1992) which held, relying heavily on the Comment to AZ-ER 4.2 that: ". . . ER 4.2 does not bar counsel from having ex parte contacts with a former employee of an opposing party where the former employer is represented by counsel unless the acts or omissions of the former employee gave rise to the underlying litigation or the former employee has an ongoing relationship with the former employer in connection with the litigation." Id., 170 Ariz. at 607, 826 P.2d at 1233.

In Arizona Ethics Opinion No. 95-07, the Committee in effect accepted the rationale of and decision in the Lang case, and ruled that the ethical propriety of communicating with current or former employees of an opposing organizational party will depend upon (1) whether the acts, omissions or statements of the employee may be imputed to the employer, and (2) whether the employee is represented by counsel.

In Arizona Ethics Opinion No. 2000-05, the Committee held that the restrictions of AZ-ER 4.2 and the decision in Lang v. Superior Court, 170 Ariz. 602, 828 P.2d 1228 (App. 1992) concerning ex parte interviews of organizational adversaries continue to apply even if the former employee has become a current employee of the client of the lawyer who wishes to conduct the interview. That employee cannot be interviewed without opposing counsel's consent if his or her conduct gave rise to the litigation or if the person has a continuing relationship with the former employer in connection with the litigation. If the employee is separately represented in connection with the matter, the consent of that counsel will be sufficient. The Committee also cautioned that, if the interview occurs, the lawyer must inform the employee of the lawyer's role in the case, including the fact that the person's employer is an adverse party, and must avoid inquiring into any privileged communications between the employee and counsel for his or her former employer.

In Arizona Ethics Opinion No. 03-02, the Committee held that a lawyer serving as the trustee in bankruptcy may directly contact parties in bankruptcy cases who are represented by counsel, because AZ-ER 4.2 applies only when a lawyer "is representing a client," and that is not the case for a bankruptcy trustee. If, on the other hand, the lawyer has a dual appointment to act not only as the trustee, but also as counsel for the trustee, then AZ-ER 4.2 would apply and prohibits ex parte communications with parties represented by counsel in the matter, unless authorized by law.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

There are no Arizona authorities that address the circumstances under which an ex parte contact with a party known to be represented by counsel would be "authorized by law." In the past, certain courts have recognized that in criminal matters attorneys for the government may communicate directly with a person who is known to be represented by counsel, provided the requirements of the Fifth and Sixth amendments are satisfied. See United States v. Kenny, 645 F.2d 1323 (9th Cir. 1986); United States v. Ryans, 903 F.2d 731 (10th Cir. 1990).

4.2:230      Communications "Authorized by Law" -- Other

As noted in the preceding Section 4.2:220, there are no Arizona authorities that address the circumstances under which an ex parte contact with a party known to be represented by counsel would be "authorized by law."

4.2:240      Communication with a Represented Government Agency or Officer

There are no Arizona authorities that directly address this issue. The Comment to AZ-ER 4.2 notes that "the existence of a controversy between a government agency and a private party . . . does not prohibit a lawyer for either communicating with nonlawyer representatives of the other regarding a separate matter." Comment, AZ-ER 4.2, 1. That suggests, by implication, that in that situation a contact by a lawyer with nonlawyer representatives of the governmental agency with respect to the matter that is the subject of litigation involving the government agency, would be improper without the consent of the lawyer for the agency. On the other hand, in that situation, that paragraph of the Comment explains that: "Communications authorized by law include . . . the right of a party to a controversy with a government agency to speak with government officials about the matter." Id.

4.2:250      Communication with a Confidential Agent of Non-Client

There are no Arizona authorities that address this precise issue. See discussion in Section 4.2:210, supra. The Committee on the Rules of Professional Conduct, however, recently issued Arizona Ethics Opinion No. 99-07, in response to "several requests for opinions involving the conduct of non-lawyers purporting to act as public adjusters within the meaning of A.R.S. § 20-281." The Committee noted in its Opinion that in some instances, the "public adjusters," including one who was a disbarred lawyer, were claiming to have the right to adjust personal injury claims for "clients," and to participate in arbitration hearings concerning uninsured motorist issues. The Committee specifically limited its Opinion to situations where these nonlawyer "public adjusters" were not acting under the supervision of a lawyer and were not otherwise licensed to practice.

The Committee initially noted that, by enacting A.R.S. § 20-281, the Legislature was apparently authorizing non-lawyers to engage in what would otherwise be the unauthorized practice of law and, because of that circumstance, the Committee was without authority to declare that these non-lawyers were engaged in the unauthorized practice of law when exercising rights granted to them by the Legislature. The Committee went on to note, however, that lawyers were still bound by the proscription against assisting the unauthorized practice of law, and concluded that a lawyer who interacts with these "public adjusters" in a manner that effectively treats them as lawyers would be violating that proscription. Based upon that analysis, the Committee announced the following four rules to govern dealings between admitted lawyers and unsupervised "public adjusters" and/or their purported "clients":

1. A lawyer may not negotiate with an opposing party's non-lawyer adjuster, if the non-lawyer adjuster is not supervised by an attorney and is not authorized to practice law.

2. A lawyer may communicate directly with an adverse party when the adverse party is represented by a non-lawyer adjuster if the non-lawyer adjuster is not supervised by an attorney and is not authorized to practice law.

3. A lawyer may not participate in an arbitration hearing of an uninsured motorist claim if the adverse party is represented by a non-lawyer adjuster who intends to take and attend depositions, appear at the hearing, offer evidence, examine and cross-examine witnesses, and make argument.

4. A lawyer may honor a non-lawyer adjuster's lien for services performed if the lien relates to services that any non-lawyer could legally perform.

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Arizona Rule

4.3:101      Model Rule Comparison

The 2003 amendments to this Rule emphasize the lawyer's obligation to make the lawyer's status clear to unrepresented persons whose interests are or may be in conflict with the interests of the lawyer's client, and to advise unrepresented persons to secure separate counsel when there is a reasonable possibility of such a conflict.

AZ-ER 4.3 and the accompanying Comment are identical to MR 4.3 and its accompanying Comment.

4.3:102      Model Code Comparison

There was no direct counterpart to MR 4.3 and AZ-ER 4.3 in the Code. DR 7-104(A)(2) provided that a lawyer shall not "[g]ive advice to a person who is not represented by counsel, other than the advice to secure counsel . . . ."

4.3:200   Dealing with Unrepresented Person

Both AZ-ER 4.3 and MR 4.3 are broader in their reach than the roughly corresponding provision of the former Code of Professional Responsibility, DR 7-104(A)(2), which applied only to the rendering of legal advice to an unrepresented person. The Comment makes clear that the new Rule applies not only to that situation, but to any dealings between a lawyer and a person not represented by counsel. In dealing with a person not represented by counsel, a lawyer must not state or imply that the lawyer is disinterested. As AZ-ER 4.3 specifically provides: "When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding."

In Arizona Ethics Opinion No. 87-25, the Committee on the Rules of Professional Conduct held that, while a plaintiff's lawyer may interviw and take a staement from a defendant whom the lawyer has named in a pending action but who has neither been served or retained counsel, the lawyer must first inform that person that he or she has been named as a defendant in an action filed by the plaintiff's lawyer, that the lawyer represents the plaintiff in the action, that the lawyer is seeking information in connection with the pending litigation, provide a description of the case, and inform the person that any disclosures he or she makes will be considered voluntary.

In Arizona Ethics Opinion No. 91-21, the Committee ruled that a County Attorney must make reasonable efforts to ensure that custodial and non-custodial parents who seek assistance from the County Attorney's Child Support Services Division understand clearly the relationship of the County Attorney's Office to them in its efforts to obtain support payments or to modify existing support orders.

In Arizona Ethics Opinion No. 96-02, the Committee ruled that an attorney handling an action brought against a homeowner's association may communicate with general members of the association who are not board members or officers and are not in a position to bind the association, without the prior consent of counsel for the association.

In Arizona Ethics Opinion No. 88-01, the Committee ruled that it was ethically impropr 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, not on the provisions of AZ-ER 4.3, but rather on 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.

In Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App. 1989), the Arizona Court of Appeals held that, in medical malpractice actions, defense counsel may not conduct ex parte interviews of the plaintiff's treating physicians without the plaintiff's consent or an appropriate release. The Court announced this rule as a matter of policy and not as one required by any particular provision of the Arizona Rules of Professional Conduct.

The issue of whether it is proper to tape record conversations with, or interviews with, unrepresented third persons who might be witnesses in a case, without their knowledge or consent, has evolved. In Arizona Ethics Opinion Nos. 74-18 and 74-35, the Committee concluded that it was unethical to surreptitiously record conversations with witnesses or potential witnesses, or to encourage others (such as private investigators or paralegals) to do so. In the following year, however, the Committee issued Arizona Ethics Opinion No. 75-13, which authorized four exceptions to that rule against non-consensual recordings or conversations with, or interviews of, third-party witnesses: (1) where the lawyer was recording an utterance that was itself a crime, such as the offer of a bribe, (2) where the conversation recorded was of an informant or a person under criminal investigation and the recording was done to protect the lawyer or the lawyer's investigator, (3) where the recording was specifically authorized by court order, court rule or statute, and (4) where the lawyer's motivation was to protect the lawyer or the lawyer's client from harm resulting from perjured testimony, but not where the intent was to secure impeachment evidence.

The issue was once again revisited by the Committee in its Arizona Ethics Opinion No. 90-02, wherein it recognized that the distinctions drawn in its former Arizona Ethics Opinion No. 75-13 did not recognize the realities of the present day criminal justice system and might put criminal defense lawyers at a distinct disadvantage. Accordingly, Arizona Ethics Opinion No. 90-02 announced a rule that it was permissible for criminal defense attorneys to surreptitiously record conversations with and/or interviews of witnesses, even where the purpose was to obtain potential impeachment evidence. The Opinion was silent on what rule would prevail in the context of civil cases.

The Committee recently issued Arizona Ethics Opinion No. 99-07, in response to "several requests for opinions involving the conduct of non-lawyers purporting to act as public adjusters within the meaning of A.R.S. § 20-281." The Committee noted in its Opinion that in some instances, the "public adjusters," including one who was a disbarred lawyer, were claiming to have the right to adjust personal injury claims for "clients," and to participate in arbitration hearings concerning uninsured motorist issues. The Committee specifically limited its Opinion to situations where these nonlawyer "public adjusters" were not acting under the supervision of a lawyer and were not otherwise licensed to practice.

The Committee initially noted that, by enacting A.R.S. § 20-281, the Legislature was apparently authorizing non-lawyers to engage in what would otherwise be the unauthorized practice of law and, because of that circumstance, the Committee was without authority to declare that these non-lawyers were engaged in the unauthorized practice of law when exercising rights granted to them by the Legislature. The Committee went on to note, however, that lawyers were still bound by the proscription against assisting the unauthorized practice of law, and concluded that a lawyer who interacts with these "public adjusters" in a manner that effectively treats them as lawyers would be violating that proscription. Based upon that analysis, the Committee announced the following four rules to govern dealings between admitted lawyers and unsupervised "public adjusters" and/or their purported "clients":

1. A lawyer may not negotiate with an opposing party's non-lawyer adjuster, if the non-lawyer adjuster is not supervised by an attorney and is not authorized to practice law.

2. A lawyer may communicate directly with an adverse party when the adverse party is represented by a non-lawyer adjuster if the non-lawyer adjuster is not supervised by an attorney and is not authorized to practice law.

3. A lawyer may not participate in an arbitration hearing of an uninsured motorist claim if the adverse party is represented by a non-lawyer adjuster who intends to take and attend depositions, appear at the hearing, offer evidence, examine and cross-examine witnesses, and make argument.

4. A lawyer may honor a non-lawyer adjuster's lien for services performed if the lien relates to services that any non-lawyer could legally perform.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Arizona Rule

4.4:101      Model Rule Comparison

The 2003 amendments added a new paragraph (b) which governs what lawyers should do when documents are inadvertently transmitted to them. The amendments to AZ-ER 4.4 went further than the similar amendments to MR 4.4, in that AZ-ER 4.4(b) requires the receiving lawyer to preserve the status quo for a reasonable period of time after notifying opposing counsel of the receipt of the document(s).

AZ-ER 4.4 and its accompanying Comment are substantially identical to MR 4.4 and its accompanying Comment, with one significant difference. While both AZ-ER 4.4(b) and MR 4.4(b) require a lawyer who receives an inadvertently transmitted document to promptly notify the sender, AZ-ER 4.4(b) adds the additional requirement that the lawyer in that situation also "preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures." This difference is also reflected in paragraph 2 of the Comments to the two Rules.

4.4:102      Model Code Comparison

DR 7-106(C)(2) provided that a lawyer shall not "[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person." DR 7-102(A)(1) provided that a lawyer shall not "take . . . 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." DR 7-108(D) provided that: "After discharge of the jury . . . the lawyer shall not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror . . ." DR 7-108(E) provided that "a lawyer shall not conduct . . . a vexatious or harassing investigation of a venireman or a juror."

4.4:200   Disregard of Rights or Interests of Third Persons

  • Primary Arizona References: AZ-ER 4.4 and accompanying Comment
  • Background References: ABA Model Rule 4.4, Other Jurisdictions
  • Commentary: ABA/BNA § 71:101, ALI-LGL §§ 163, 166, 167, Wolfram § 12.4.4, State Bar Manual on Professionalism 158-159 (1992); McAuliffe, Arizona Civil Rules Handbook - 1999 Edition (West Group 1999) pp. 226, 269, 827, 837-38

AZ-ER 4.4 provides that, in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. As the Comment to the Rule elaborates:

Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impracticable to catalogue such rights, but they include legal restrictions on methods of obtaining evidence from others and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

Comment, AZ-ER 4.4, 1. The issues raised by this Rule are, accordingly, quite similar to those raised by the obligations imposed by AZ-ER 4.3.

Others, within the meaning of the Rule, include former employees or agents of an organizational adversary. The issue of whether it was permissible for a lawyer to contact such a former employee or agent without the consent of counsel representing the organizational adversary was not easily resolved in Arizona. When the issue was presented to the Committee on the Rules of Professional Conduct ("the Committee"), the Committee divided evenly on the issue and promulgated its Arizona Ethics Opinion No. 89-05, which was in actuality two Alternative Opinions reaching different conclusions on the subject. The controversy was finally resolved by the Arizona Court of Appeals' Opinion in In re Lang, 170 Ariz. 602, 826 P.2d 1228 (App. 1982) which held, relying heavily on the Comment to AZ-ER 4.2 that: " . . . ER 4.2 does not bar counsel from having ex parte contacts with a former employee of an opposing party where the former employer is represented by counsel unless the acts or omissions of the former employee gave rise to the underlying litigation or the former employee has an ongoing relationship with the former employer in connection with the litigation." Id., 170 Ariz. At 607, 826 P.2d at 1233. Following the decision in Lang, the Committee issued its Arizona Ethics Opinion No. 95-07, in which it in effect accepted the rationale of and decision in Lang, and ruled that the ethical propriety of communicating with current or former employees of an opposing organizational party will depend upon (1) whether the acts, omissions or statements of the employee may be imputed to the employer, and (2) whether the employee is represented by counsel.

Consistently therewith, the Committee ruled, in Arizona Ethics Opinion No. 98-04, that, where a parent corporation is represented by counsel in a matter, opposing counsel may not contact a present employee of a wholly-owned subsidiary of the parent company, without the consent of counsel for the parent, if (1) the employee has managerial responsibility on behalf of the organization, (2) the employee's actions may give rise to liability for the parent corporation, and (3) the employee's statements may be admissible against the parent as admissions. Conversely, the Committee held, in Arizona Ethics Opinion No. 96-02, that an attorney prosecuting an action against a homeowner's association may communicate with general members of the association who are not board members or officers of the association, and not in a position to bind the association, without the prior consent of counsel for the association.

In Arizona Ethics Opinion No. 87-25, the Committee held that, while a plaintiff's lawyer may interview and take a statement from a defendant whom that lawyer has named in a pending action, but who has neither been served or retained counsel, the lawyer must first inform that person that he or she has been named as a defendant in an action filed by the lawyer, that the lawyer represents the plaintiff in the action, that the lawyer is seeking information in connection with the pending litigation, provide a description of the case, and inform the person that any disclosures he or she makes will be considered voluntary.

In Arizona Ethics Opinion No. 88-01, the Committee ruled 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 witness. In reaching this conclusion, the Committee relied primarily, not on the provisions of either AZ-ER 4.3 or 4.4, but rather on 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 witness as a matter of right - - the Rules still do not authorize ex parte interviews of those experts.

In Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App. 1989), the Arizona Court of Appeals held that, in medical malpractice actions, defense counsel may not conduct ex parte interviews of the plaintiff's treating physicians without the plaintiff's consent or an appropriate release. The Court announced this rule as a matter of policy, rather than as one required by any particular provision of either the Arizona Rules of Professional Conduct or of the Arizona Rules of Procedure.

One of the ways to insure the accuracy of information garnered from an interview from a potential third party witness and/or to establish what was said if that is subsequently disputed, is to record the conversation or interview. The issue of whether it is proper to tape record conversations with, or interviews of, unrepresented third parties who might be witnesses in a case, without their knowledge or consent, has evolved. In Arizona Ethics Opinion Nos. 74-18 and 74-35, the Committee concluded that it was unethical to surreptitiously record conversations with witnesses or potential witnesses, or to encourage others (such as private investigators or paralegals) to do so. In the following year, however, the Committee issues Arizona Ethics Opinion No. 75-13, which authorized four exceptions to that rule against non-consensual recordings of conversations with, or interviews of, third-party witnesses: (1) where the lawyer was recording an utterance that was itself a crime, such as the offer of a bribe, (2) where the conversation recorded was of an informant or a person under criminal investigation and the recording was done to protect the lawyer or the lawyer's investigator, (3) where the recording was specifically authorized by court order, court rule or statute, and (4) where the lawyer's motivation was to protect the lawyer or the lawyer's client from perjured testimony, but not where the intent was to secure impeachment evidence.

The issue was once again revisited by the Committee in its Arizona Ethics Opinion No. 90-02, wherein it recognized that the distinctions drawn in its former Arizona Ethics Opinion No. 75-13 did not recognize the realities of the present day criminal justice system and might put criminal defense lawyers at a distinct disadvantage. Accordingly, Arizona Ethics Opinion No. 90-02 announced a rule that it was permissible for criminal defense attorneys to surreptitiously record conversations with and/or interviews of witnesses, even where the purpose was to obtain potential impeachment evidence. The Opinion was silent on what rule would prevail in the context of civil cases.

While both AZ-ER 4.4 and the accompanying Comment specifically prohibit the use of methods of obtaining evidence that violate the legal rights of a third party, the Rule is clearly not limited in its application to that circumstance. Thus, in Matter of Woltman, 178 Ariz. 548, 875 P.2d 781 (1994), the Supreme Court approved the disbarment of an attorney for a variety of ethical offenses, including threatening adverse parties and others with physical violence, which the Disciplinary Commission had found to be a violation of AZ-ER 4.4.

In Arizona Ethics Opinion No. 2001-04, 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.

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

There are no Arizona authorities that specifically address the possible application of AZ-ER 4.4 to trial tactics, such as the conduct of a cross-examination of an adverse witness. In Arizona, the permissible scope of cross-examination is quite broad. Unlike its counterpart in the Federal Rules of Evidence, Rule 611(b) of the Arizona Rules of Evidence does not limit the scope of cross-examination to matters covered in the witness' direct testimony, but permits it to be conducted "on any relevant matter." Counsel are, accordingly, to be accorded wide latitude in the conduct of cross-examination. Watts v. Golden Age Nursing Home, 127 Ariz. 255, 619 P.2d 1032 (1980). It is improper, however, to ask questions during cross-examination that insinuate the existence of facts that will not be the subject of proof. Taylor v. Cate, 117 Ariz. 367, 573 P.2d 58 (1977); Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947). Where an attempt is made to impeach a witness on the basis of a witness' claimed past misconduct, counsel must have some basis in fact for the inquiry before making it. Foulk v. Kotz, 138 Ariz. 159, 673 P.2d 799 (App. 1983).

4.4:220      Threatening Prosecution [see 8.4:900]

Neither AZ-ER 4.4 nor AZ-ER 8.4 expressly address the propriety of an attorney threatening a third party with criminal prosecution in the context of civil litigation. Former DR 7-105 of the Code of Professional Responsibility provided that it was an ethical violation for a lawyer to threaten criminal charges for the sole purpose of attempting to gain an advantage in a civil matter, but this rule was not carried forward into the Model Rules of Professional Conduct.

Notwithstanding the absence of a specific prohibition directed to such conduct, threatening an adversary or third party with criminal prosecution may violate AZ-ER 8.4(b) or (d) if the threat violates a criminal statute. That is the clear implication of Arizona Ethics Opinion No. 91-07, where the Committee concluded that an attorney in the Child Support Services Division of the County Attorney's Office may use a form letter which alludes to criminal prosecution, if the letter in context does not violate the state's extortion statute, and does not run afoul of any specific ethical proscription. In addition to the concern that the use of such threats may amount to extortion, which may subject the lawyer using them to criminal prosecution, they may also support a claim of abuse of process, for which lawyers can be held liable to third parties. See Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143 (App. 1999); McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985); 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); Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69 (App. 1980).

The rule is quite different in the criminal context. The Arizona Supreme Court has found it is permissible, and not grounds for reversal, for a prosecutor to threaten to prosecute a criminal defendant diligently, and to seek his conviction and a "stiff sentence," because the statements in question were merely a reflection of what a prosecutor had a duty to do. State v. Lerch, 107 Ariz. 529, 490 P.2d 1 (1971). A similar result was reached in State v. Nicholson, 109 Ariz. 6, 503 P.2d 954 (1972), where a prosecutor had allegedly promised to prosecute five criminal charges against a defendant diligently, if the defendant did not plead guilty to one criminal charge.

4.4:230      Receipt of Inadvertently Transmitted Documents

New AZ-ER 4.4(b), adopted in 2003, imposes two separate, but related, obligations on a lawyer who receives a document and knows or reasonably should know that the document was sent to that lawyer inadvertently: (1) an obligation to promptly notify the sender, and (2) the obligation to preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures. The latter requirement, as noted earlier, is not contained in MR 4.4(b). As the Comment to this aspect of the Rule explains:

Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that a document was sent inadvertently, then this Rule requires the lawyer to stop reading the document, to make no use of the document, and to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, "document" includes e-mail or other electronic modes of transmission subject to being read or put into readable form.

Comment, AZ-ER 4.4, 2.

Prior to the adoption of this Rule, the Committee on the Rules of Professional Conduct ("the Committee") addressed a related, but distinct, issue in its Arizona Ethics Opinion No. 2001-04. The issue concerned 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 any 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 may not do but was still required to refrain from examining or using the materials and, on that condition, was not required to withdraw. If there was evidence that the client had some complicity in obtaining the materials, and intended to continue to do so, the lawyer must counsel the client about the legal consequences of that and instruct the client to discontinue. If the client refuses to do so, 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 a similar nature from the client.