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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VI. PUBLIC SERVICE

6.1   Rule 6.1 Pro Bono Public Service

6.1:100   Comparative Analysis of Arizona Rule

AZ-ER 6.1, in very general terms, deals with a lawyer's obligation to render public interest legal service, and to support programs that provide direct delivery of legal services to the indigent.

6.1:101      Model Rule Comparison

There were no changes made to this Rule or the accompanying Comment by the 2003 amendments to the Arizona Rules of Professional Conduct.

AZ-ER 6.1 and MR 6.1 are similar, with a few exceptions. Both set a minimum standard of fifty (50) hours of pro bono legal services per calendar year and both describe several similar activities which will be considered pro bono for purposes of discharging the annual responsibility. AZ-ER 6.1, however, provides greater flexibility, leaving the decision of how to allocate the fifty (50) hours to the individual lawyer, while MR 6.1 states that the majority of the fifty (50) hours should be spent providing legal services for no fee or expectation of fee to persons of limited means or organizations designed primarily to assist persons of limited means. AZ-ER 6.1 also provides, while MR 6.1 does not, that a law firm may satisfy the responsibility collectively, and that those who work less than full-time can adjust downward the fifty hour standard. The Comments to the two Rules reflect these differences.

6.1:102      Model Code Comparison

The Model Code had no counterpart to AZ-ER 6.1 in its Disciplinary Rules. EC 8-3 stated that "[t]hose persons unable to pay for legal services should be provided needed services." EC 2-24 and EC 2-25 also recognized the need for legal services of those unable to pay reasonable fees, and EC 2-25 expressed the policy that individual lawyers are responsible for providing legal services to the disadvantaged. EC 2-25 did not spell out, however, what conduct and how much satisfied the ethical aspiration.

AZ-ER 6.1 on the other hand, describes in great detail specific types of conduct that will satisfy a lawyer's responsibility to provide pro bono service, and sets a minimum standard of fifty (50) hours of pro bono service. Both AZ-ER 6.1 and EC 2-25 recognize the very necessary efforts of the profession as a whole to institute programs to provide direct delivery of legal services to the poor, and both encourage individual lawyers to support such organizations. AZ-ER 6.1 states overtly that lawyers are encourage to provide "financial support" to those organizations.

6.1:200   Lawyer's Moral Obligation to Engage in Public Interest Legal Service

AZ-ER 6.1), which establishes the pro bono service "standard," is hortatory, rather than mandatory, in nature. It provides that a lawyer "should voluntarily render public interest legal service," and specifies that a lawyer may discharge this responsibility by rendering a minimum of fifty (50) hours of service in each calendar year through engaging in one or more of the following activities:

1.) Providing professional services at no fee, or at a substantially reduced fee, to the poor or near poor, or to organizations that have as a principal purpose promoting the interests of the poor or near poor, or to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights; or

2.) Providing services at no fee, or at a substantially reduced fee, in connection with law-related education sponsored by the Arizona Foundation for Legal Services and Education, or activities for improving the law, the legal system or the legal profession; or

3.) Providing professional or other law-related service at no fee or at a substantially reduced fee to no charitable groups or organizations.

As the Comment to the Rule explains:

This Rule does not create a mandatory duty. Nonetheless, the State Bar has expressed in its ethical rules the aspiration that lawyers will do pro bono publico service. The ABA House of Delegates has formally acknowledged "the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal services" without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation and the administration of justice. The ABA model code, which was originally adopted in Arizona, expressed that policy but did not spell out conduct that would satisfy the ethical aspiration. The State Bar believes that the basic responsibilities expressed by the Rule, while continuing to be aspirational, should be conduct specific. Accordingly, the Rule was amended in 1990 to set a minimum standard to satisfy the ethical aspiration.

* * * * * *

It is anticipated that lawyers will be creative in satisfying the responsibility and the Rule is designed to allow creativity. A law firm could lend lawyers to legal aid organizations, or set up legal aid fellowships under the Rule. It is expected that both public and private organizations of lawyers will establish office wide policies for compliance with the Rule.

Whether pro bono publico services should be mandatory is a topic that should be debated across the country. This Rule is not mandatory. Nonetheless, the State Bar believes that delineating in conduct-specific terms the kinds of activities that will satisfy the profession's responsibility to pro bono publico service, will encourage further volunteerism.

Comment, AZ-ER 6.1, 1, 8, 9.

By statute, Assistant Attorneys General are permitted to represent private clients in pro bono matters. In Arizona Ethics Opinion No. 93-08, the Committee on the Rules of Professional Conduct ("the Committee") ruled that such lawyers may participate in, or represent clients referred to them by a pro bono legal services program, so long as precautions were taken to detect and avoid conflicts of interest. Such precautions could include pre-screening possible conflicts prior to an initial interview of the client, and limiting the interviewing of potential clients to those with problems in areas in which the State was not likely to have an interest.

In Arizona Ethics Opinion No. 91-16, the Committee noted that AZ-ER 6.1 defines pro bono service broadly. Accordingly, and because the availability of judges pro tempore is essential to the administration of justice in Arizona, the Committee determined that a lawyer who serves as a judge pro tempore without pay may properly count such service as meeting the pro bono service aspirational standards. In Arizona Ethics Opinion No. 89-10, the Committee noted that an attorney who accepts credit cards for payment of fees makes it possible for some people to receive legal services which they otherwise could not afford.

In Arizona Ethics Opinion No. 87-07, the Committee responded to an inquiry from an attorney who had learned, through a newspaper article, of an indigent individual with a legal problem of public significance, and who inquired whether he could offer legal services to that individual pro bono. The Committee responded that it was proper for an attorney to solicit employment from a prospective indigent client provided the attorney had no motive for pecuniary gain. The Committee also pointed out that an attorney representing an indigent client may pay the costs and expenses of litigation, and may also ask the client to pay as much of the costs and expenses as possible.

6.2   Rule 6.2 Accepting Appointments

6.2:100   Comparative Analysis of Arizona Rule

6.2:101      Model Rule Comparison

There were no changes made to this Rule or the accompanying Comment by the 2003 amendments to the Arizona Rules of Professional Conduct.

AZ-ER 6.2 and its accompanying Comment are identical to MR 6.2 and its accompanying Comment.

6.2:102      Model Code Comparison

There was no counterpart to AZ-ER 6.2 in the Disciplinary Rules of the former Code of Professional Responsibility, but its subject matter was addressed in the Ethical Considerations. EC-29 stated that: "When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reason. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case. EC 2-30 stated that: "a lawyer should decline employment if the intensity of his personal feelings, as distinguished from a community attitude, may impair his effective representation of a prospective client."

6.2:200   Duty to Accept Court Appointments Except for Good Cause

AZ-ER 6.2 provides that a lawyer may not seek to avoid being appointed as counsel by a tribunal except for "good cause." The Rule itself provides the following examples of what will constitute the requisite "good cause":

1.) Where representing the client is likely to result in violation of the Arizona Rules of Professional Conduct or other law;

2.) Where representing the client is likely to result in an unreasonable financial burden on the lawyer; or

3.) Where the client or the cause is so repugnant to the lawyer that it is likely to impair the attorney-client relationship or the lawyer's ability to represented the client.

The Comment to the Rule notes that lawyers have a responsibility, under AZ-ER 6.1 to assist in providing pro bono publico service, and may discharge that responsibility by accepting court appointments to represent indigent individuals, but then explains:

For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see ER 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.

An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the rules.

Comment, AZ-ER 6.2, 1, 2.

In Zarabia v. Bradshaw, 185 Ariz. 1, 912 P.2d 5 (1996), the Supreme Court ruled that, while indigent criminal defendants are entitled to have counsel appointed to represent them, if the attorney appointed or assigned is incapable of providing effective assistance at trial or on appeal, then the indigent defendant's constitutional rights have been violated. The Court observed that attorneys should be able to decline such appointments if they determine that they are incapable of providing effective representation. In Zarabia, the Court found that the practice of the Yuma County Superior Court of rotating such appointments among private attorneys was unconstitutional, and violative of A.R.S. § 13-4013 and Rule 6.5(c) of the Arizona Rules of Criminal Procedure, because the system potentially failed to provide indigent defendants with competent counsel, and failed to provide counsel with reasonable compensation to meet overhead expenses. Id. The Court drew a distinction between the inherent authority of a judge to appoint a particular lawyer to represent a defendant in a particular case, and a system which permits judges to conscript "lawyers to regularly handle all cases regardless of their ability or willingness to do so." Id., 185 Ariz. At 4, 912 P.2d at 8. As the Court explained:

Whatever appointment process a court adopts should reflect the principle that lawyers have the right to refuse to be drafted on a systematic basis and put to work at any price to satisfy a county's obligation to provide counsel to indigent defendants.

Id., 185 Ariz. At 4, 912 P.2d at 8.

6.3   Rule 6.3 Membership in Legal Services Organization

6.3:100   Comparative Analysis of Arizona Rule

6.3:101      Model Rule Comparison

There were no changes made to this Rule or the accompanying Comment by the 2003 amendments to the Arizona Rules of Professional Conduct.

AZ-ER 6.3 is substantially identical, with the sole difference being that Arizona did not include the words "or action" in subparts (a) and (b) of the Rule. The Comment accompanying AZ-ER 6.3 is identical to the Comment accompanying MR 6.3.

6.3:102      Model Code Comparison

There was no counterpart to this Rule in the former Code of Professional Responsibility.

6.3:200   Conflicts of Interest of Lawyers Participating in a Legal Services Organization

AZ-ER 6.3 permits a lawyer to serve as a director, officer or member of a legal services organization, apart from the firm or organization in which the lawyer practices, even though the organization provides services to persons whose interests might be adverse to clients of the lawyer. As the Comment to the Rule notes: "A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization." Comment, AZ-ER 6.3, 1. Moreover, there is a recognized value in having lawyers serve on the boards of such organizations, and the mere possibility of a conflict between a lawyer's own clients and persons provided legal services by the organization is not sufficient to preclude the lawyer from serving on such boards entirely. Notwithstanding that, however, a lawyer serving on such a board must be sensitive to his or her obligations to clients under all the ethical rules, and particularly the rules concerning conflicts of interest.

Thus, under the Rule itself, the lawyer cannot knowingly participate in a decision or action of the legal services organization if that decision would be incompatible with the lawyer's obligations to a client under AZ-ER 1.7. Similarly, a lawyer serving a legal services organization in the capacity of director, officer or member may not knowingly participate in a decision or action of the organization if the decision could have a material adverse impact on the representation of a client served by the organization whose interests are adverse to a client of the lawyer.

There are no other Arizona authorities which apply or elaborate upon the principles of AZ-ER 6.3 and the accompanying Comment.

6.4   Rule 6.4 Law Reform Activities Affecting Client Interests

6.4:100   Comparative Analysis of Arizona Rule

6.4:101      Model Rule Comparison

There were no changes made to this Rule or the accompanying Comment by the 2003 amendments to the Arizona Rules of Professional Conduct.

AZ-ER 6.4 and its accompanying Comment are identical to MR 6.4 and its accompanying Comment.

6.4:102      Model Code Comparison

The former Code of Professional Responsibility contained no counterpart to this Rule.

6.4:200   Conflicts of Interest of Lawyers Participating in Law Reform Organizations

AZ-ER 6.4 permits a lawyer to serve as a director, officer, or member of an organization involved in the reform of the law. The ethical cautions to which the lawyer serving in such a capacity must be sensitive are much reduced from the situation where the lawyer serves in a similar capacity for a legal services organization (which is the subject of AZ-ER 6.3), because law reform organizations typically do not provide legal services for persons whose interests might conflict with those of a client of the lawyer. As the Comment to the Rule notes:

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client.

Comment, AZ-ER 6.4, 1. In fact, the only restriction on a lawyer's participation in law reform programs that is articulated in the Rule and the accompanying Comment is one which the drafters of the Rule felt necessary to "protect the integrity of the program . . ." If a lawyer serves as a director, officer or member of an organization involved in law reform activities, and the lawyer knows that a potential decision of the organization may materially benefit a client of the lawyer, the must make an appropriate disclosure of that circumstances, but need not disclose the identity of the client involved. The language of the Rule suggests that, if the appropriate disclosure is made, the lawyer may proceed to participate in the decision in question.

There are no other Arizona authorities which apply or elaborate upon the principles of AZ-ER 6.4 and the accompanying Comment.

6.5   Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

6.5:100   Comparative Analysis of Arizona Rule

MR 6.5 was added in February 2002. The Reporter's explanation of the change reads as follows:

Rule 6.5 is a new Rule in response to the Commission's concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers in programs in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. The paradigm is the legal-advice hotline or pro se clinic, the purpose of which is to provide short-term limited legal assistance to persons of limited means who otherwise would go unrepresented.

6.5:101      Model Rule Comparison

AZ-ER 6.5 is a new Rule, added by the 2003 amendments to the Arizona Rules of Professional Conduct.

AZ-ER 6.5 and the accompanying Comment are identical to MR 6.5 and its accompanying Comment.

6.5:102      Model Code Comparison

There was no counterpart to Rule 6.5 in the former Code of Professional Responsibility.

6.5:200   Scope of Rule

This new Rule, both for Arizona and the Model Rules, seeks to encourage greater participation by lawyers in legal advice hotlines, advice-only clinics, pro per counseling and similar programs that seek to provide limited legal services to those in need of such legal services. The Rule applies only to limited legal services programs "sponsored by a nonprofit organization or court" where legal services are provided "without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter . . .: AZ-ER 6.5(a). In that setting, the Rule provides that the conflict of interests rules do not apply unless the lawyer providing the services actually knows that the representation of the limited services program client represents a conflict of interest, either for that lawyer or for another lawyer with whom the lawyer is associated such that it will be imputed.

The Comment to the Rule explains the reason for it and the problem it is intended to address:

Legal service organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice of the completion of legal forms - that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., ERs 1.7, 1.9 and 1.10.

* * * * * * *

Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with ERs 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with ER 1.10 only if the lawyer knows that another lawyer in the lawyer's firm is disqualified by ERs 1.7 or 1.9(a) in the matter.

Comment, AZ-ER 6.5, 1, 3.

In the course of participating in such programs, the lawyer must secure the client's consent to the limited scope of representation being provided. As the Comment notes:

A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client's informed consent to the limited scope of the representation. See ER 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including ERs 1.6 and 1.9(c) are applicable to the limited representation.

Comment, AZ-ER 6.5, 2. Needless to say, "[I]f, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client on an ongoing basis, ERs 1.7, 1.9(a) and 1.10 become applicable." Id., 5.

6.5:300   Special Conflict of Interest Rule

See 6.5:200.