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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Arizona Rule

8.1:101      Model Rule Comparison

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

AZ-ER 8.1 and the accompanying Comment are identical to MR 8.1 and the accompanying Comment.

8.1:102      Model Code Comparison

DR 1-101(A) of the former Code of Professional Responsibility provided that: "A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact in connection with, his application for admission to the bar."

DR 1-101(B) of the former Code of Professional Responsibility provided that: "A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified with respect to character, education, or other relevant attribute."

8.1:200   Bar Admission

The State Bar of Arizona is an organization established by Rule 31(a)(1) of the Rules of the Arizona Supreme Court (hereinafter "RASC"). The State Bar of Arizona is a mandatory bar, and all persons licensed to engage in the practice of law in Arizona must be members of it. Rule 31(a)(1), RASC. Conversely, subject to the exceptions discussed hereinafter [see Section 8.1:230, infra], persons who have not been admitted to the Arizona Bar and become members of the State Bar of Arizona may not practice law in the state. Thus, an attorney who is licensed to practice law in another state and before the United States Supreme Court, but not in Arizona, may not practice law in Arizona even if she or he limits her or his practice exclusively to social security disability, retirement and survivors' insurance, medicare, and supplemental security income claims. Arizona Ethics Opinion No. 84-07. See also Rule 33(c), RASC.

8.1:210      Bar Admission Agency

The Supreme Court has plenary authority over admission to practice law in Arizona, and relies on two Committees which administer and control the process for examination and admission of applicants for membership in the State Bar of Arizona: the Committee on Examinations and the Committee on Character and Fitness. The Committee on Examinations consists of seven or more active members of the State Bar, and the Committee on Character and Fitness consists of seven or more active members of the State Bar and two or more nonlawyer members. Members of both Committees are appointed by the Supreme Court from persons recommended by the Board of Governors. The Committee on Examinations examines applicants for admission and advises the Court and the Committee on Character and Fitness of those who have successfully passed the examination or examinations required for admission. The Committee on Character and Fitness then recommends to the Court for admission those individuals who have passed the examination(s) and are deemed to be qualified on the basis of character and fitness. The Court will then consider the recommendations and either grant or deny admission. Rule 33(a), RASC.

The various provisions set forth in the Rules of the Arizona Supreme Court do not operate as a limit on the Supreme Court's authority to revoke or suspend, after due notice and a hearing, the right of an attorney to practice law, for fraud or material misrepresentation in the procurement of admission to practice. Rule 33(b), RASC.

8.1:220      Bar Admission Requirements

Any person seeking admission to the State Bar must file with the secretary of the Committee on Character and Fitness a written application in the form supplied by the Committee, accompanied by the required supporting documents and the examination and filing fee. The applicant must also complete and submit a character report accompanied by a character investigation fee established by the Supreme Court. The character report and fee may be submitted separately from the application for admission. Rule 34(a), RASC.

The supporting documents that must accompany the application for admission include: law school diploma or other evidence of graduation from a law school fully or provisionally approved by the ABA (except in cases of admitted lawyers where this requirement does not apply); a certificate from jurisdictions, if any, where the applicant is already admitted that the applicant is in good standing or resigned while in good standing; the filing and examination fees prescribed by the Supreme Court; a full face photograph; and, a complete set of fingerprints. Rule 34(b), RASC.

An applicant may sit for the bar examination if an application and all supporting documentation required is timely filed, but no applicant for admission can be recommended for admission by the Committee on Character and Fitness unless the Committee determines that the applicant at the time of examination will be over 21 years old; that the applicant is of good moral character; that applicant is a graduate of a law school fully or provisionally approved by the ABA (this requirement does not apply to an applicant who has been actively engaged in the practice of law in some other state or states for at least five of the seven years preceding the application); that, if ever admitted in any other jurisdiction, foreign or domestic, applicant is in good standing or resigned while in good standing. The Committee on Character and Fitness can make provisions for students who have completed their first year of law school at the University of Arizona or Arizona State University to make an early filing of an intention to seek admission, to expedite the character and fitness examination process. The Committee should complete its investigation so as to be in a position to make a recommendation concerning an applicant by the time the results of the bar examination are available, but the Rule recognizes that, in extraordinary cases, more extended time for inquiry and formulation of a recommendation may be necessary. Rule 34(c), RASC.

An applicant who files an application for admission and who thereafter withdraws the application shall be entitled to a partial refund of the fees paid in an amount established by the Supreme Court, if the applicant notifies the Committee on Character and Fitness by no later than the day preceding the first day of the examination applied for. No part of the fees paid to the National Conference of Bar Examiners is refundable. An applicant who successfully petitions for review under Rule 35 of a failure to secure a passing grade on the bar exam and is recommended for admission, and who has filed an application to take a subsequent examination while the petition was pending, is entitled to a refund of the entire subsequent examination fee. Rule 37(d), RASC.

Examination Requirements

Two examinations will be administered each year - one in February and the other in July. They will be held at such locations as the Committee on Examinations deems appropriate and applicants are to be advised of the date and place of the exam at least two weeks prior to the date of the examination. Rule 35(a), RASC. The semi-annual examinations must be written, and all candidates who receive a passing grade on the exam, and are found to be otherwise qualified, must be recommended for admission. Rule 35(c), RASC.

Applications for the February examination should normally be filed by no later than the preceding September 1; applications for the July examination should normally be filed no later than the preceding February 1. There are provisions for late filings which call for a late filing fee, but no application will be accepted later than the fortieth day preceding the first day of the examination for which the application is being made. Any applicant who fails to pass a written examination and wishes to take the next subsequent examination must file an application no later than twenty (20) days after the date of the letter notifying the applicant of his or her failure to pass the examination taken. There are provisions for the late filing of such re-examination applications as well. Rule 34(d), RASC.

At each examination session, essay examination questions will be upon some, but not necessarily all, of the following subject matter areas: contracts (including the Uniform Commercial Code, except Articles 4, 5, 7 and 8), torts, criminal law, constitutional aspects of criminal procedure, corporations, partnerships and other business organizations, wills, trusts, professional responsibility, civil procedure, constitutional law (both Arizona and federal), evidence, real property and community property. In addition, applicants may be tested on any subject listed by the National Conference of Bar Examiners for the Multistate Bar Examination. The Committee may utilize the Multistate Bar Exam, and may use such grading or scoring system as it deems appropriate. Rule 35(b), RASC.

The Committee on Examinations is to file with the Court, thirty (30) days before each examination session, the formula upon which the Multistate Bar Examination results will be applied with the other portions of the total examination results, and the proposed formula for grading the entire exam. An applicant will be deemed to have satisfied the examination requirements if the applicant achieves a score equal to or greater than the minimum acceptable score established by the Committee on Examinations. Rule 35(b), RASC.

Before an applicant can be recommended by the Committee on Character and Fitness for admission, the applicant must pass the Multistate Professional Responsibility Examination prepared by the National Conference of Bar Examiners. The Committee on Examinations, however, determines what score will be the minimum acceptable score for each administration of the Multistate Professional Responsibility Examination, and must file that minimum acceptable score with the Court at least thirty (30) days before the exam is given. An applicant must submit proof satisfactory to the Committee on Examinations that the applicant has taken and achieved a minimum acceptable score on the Multistate Professional Responsibility Examination within three (3) years of the date proposed for admission to the Bar. Rule 35(b), RASC.

An applicant who fails to pass one examination may apply for two subsequent examinations, by filing an application in the form specified by Rule 34(a), RASC, and paying an examination fee established by the Supreme Court, and such other papers and investigation fees as the Committee on Character and Fitness may require. Rule 35(d), RASC.

An applicant who has filed to take an examination and who withdraws such application or fails to appear for or complete such examination and who desires to be admitted to a subsequent examination, is to make the same filings as if that applicant had written and failed the examination. If such an applicant does not apply in that fashion to take the next succeeding examination, that applicant must file a new application with the fees required as if it were an original application. Rule 35(d), RASC.

An applicant who has passed the examination but has been denied admission for failure to meet the character and fitness requirements of Rule 34(c) is permitted to make further application for admission, and may be admitted on a finding by the Committee on Character and Fitness that the applicant has become qualified for admission. Such a reapplication, however, must be filed within three years from the date of the original denial. Rule 35(d), RASC.

An applicant who takes and fails the examination three times will not be permitted to take further examinations except upon written application to the Committee on Examinations and the receipt of permission from that Committee to sit for further examinations. Rule 35(d), RASC.

An applicant who receives a failing grade on the examination may file a verified Petition for Review of Examination Papers of Applicant with the Committee on Examinations within twenty (20) days after the results of the examination have been mailed. That Petition must specifically enumerate the questions and answers claimed to have been unfairly graded, and state specifically the claimed error or errors in grading. The Petition shall not exceed fifteen (15) pages in length, and must attach as Exhibits a copy of the answers claimed to have been unfairly graded and nothing else. An original and nine copies must be filed with the Committee on Examinations. The Committee is to make such review of the petition and of the applicant's examination papers as it believes necessary. If the Committee finds that the answer or answers were unfairly graded and that, if the answer or answers had been fairly graded, the applicant would have received a passing grade, the Committee is to recommend the applicant for admission. These review procedures do not apply to either the Multistate Bar Examination or the Multistate Professional Responsibility Examination. Rule 35(e), RASC. Following the completion of this review process, the Committee's decision regarding an applicant's grade score is final and will not be reviewed by the Supreme Court absent extraordinary circumstances. Rule 35(e)(6), RASC.

An applicant must complete all the requirements for admission within five (5) years of sitting for the bar examination. Failure to do so nullifies and voids all examination scores and the applicant will be required to retake all required examinations. Rule 37(a), RASC.

Character and Fitness requirements

The Committee on Character and Fitness is to review and consider whether applicants possess the following character traits and characteristics: honesty, trustworthiness, diligence, reliability, and respect for law and legal institutions and ethical codes governing attorneys. A significant deficiency in one or more of those characteristics may constitute a basis for denial of admission. Certain forms of conduct are specified as cause for further detailed investigation by the Committee: unlawful conduct, academic misconduct, making a false statement (or omission), misconduct in employment, acts involving dishonesty, fraud, deceit or misrepresentation, abuse of legal process, neglect of financial responsibilities, neglect or disregard of ethical or professional responsibilities, violation of a court order, conduct indicating mental or emotional instability that would impair the ability of an applicant to perform the functions of an attorney, denial of admission to the bar in another jurisdiction on character and fitness grounds, or disciplinary complaints or disciplinary action by a disciplinary agency in any jurisdiction. Rule 36(a), RASC.

In assessing how the foregoing types of conduct reflect upon the applicant's character and fitness, the Committee is to consider: the applicant's age, experience and general level of sophistication at the time of the conduct, the recency of the conduct, the reliability of the information concerning the conduct, the seriousness of the conduct, any consideration given by the applicant to relevant laws, rules and responsibilities at the time of the conduct, the factors underlying the conduct, the cumulative effect of the conduct, the evidence of rehabilitation, the applicant's positive social contributions since the conduct, the applicant's candor in the admissions process, and the materiality of any omissions or misrepresentations by the applicant. Rule 36(a), RASC.

The Committee and its staff are to conduct a complete preliminary review of the applications to see if there any instances of one of the specified types of relevant conduct. If it is determined that there is no such conduct, the Committee shall recommend the applicant for admission. If it is determined that there is some type of relevant conduct reflected, a member of the Committee is to be appointed to investigate and evaluate whether, and to what extent, the applicant's conduct should prevent the applicant's admission. The committee member, after completing the investigation, is to either dismiss the inquiry or recommend that an informal or formal hearing be held. The full Committee must review any recommendation that a formal hearing be held. Rule 36(a), RASC.

A formal or informal hearing may result in: a recommendation of the applicant for admission, a recommendation that admission be denied, a recommendation of denial of admission with a suggestion that the applicant reapply in the future upon the occurrence of specified circumstances, a requirement that the applicant provide additional information for review, a requirement that the applicant obtain assistance or treatment for a specified period in the case of current substance abuse or mental or emotional instability and provide appropriate evidence of ability to engage in the practice of law prior to reconsideration for admission; or a recommendation that the applicant be admitted conditioned on compliance with specified behavior and reporting to Chief Bar Counsel of the State Bar, or that person's designee, for a specified period. Rule 36(a), RASC.

In all cases in which there is an allegation of conduct on the part of the applicant that involves (1) the commission of a violent crime, (2) fraud, deceit or dishonesty that has resulted in damage to others, (3) neglect of financial responsibilities due to circumstances within the applicant's control, or (4) disregard of ethical or professional obligations, the applicant may not be recommended for admission unless, at a minimum, an informal hearing is held and, following that hearing, three or more members of the Committee who have attended the hearing or read the record, or a majority of those members who have attended or read the record, whichever number is greater, recommend that the applicant be admitted. Rule 36(a)(4)(E), RASC. If this requirement is not satisfied, then a formal hearing must be held, and a majority of the members of the Committee must attend and consider whether or not to recommend the applicant for admission. Id.

If the Committee finds that an application is deficient, it is to advise the applicant in writing and allow the applicant a reasonable time to either supply additional information to correct, explain in writing, or otherwise remedy the defects in the application. If the deficiencies or discrepancies have not been cured within such reasonable time, and if the reasons for the refusal of the Committee to grant permission to such an applicant to take an examination are of record in the applicant's file, the Committee may deny such permission, but must state in writing in the applicant's file its reasons for doing so, and promptly advise the applicant of the denial and the reasons. Rule 36(b), RASC.

If the Committee determines that it requires additional information or documentation to complete the findings required before it can recommend an applicant for admission, it may make an inquiry, either orally or in writing, to the applicant, or to any other person, for such additional information or documentation, or hold an informal hearing upon oral or written notice to the applicant. The notice shall advise the applicant generally of the subject or subjects of the informal hearing and the time and place where it will be held. The inquiry or informal hearing may be conducted by any designated member or members of the Committee, and all such hearings shall be stenographically recorded. If the Committee's recommendation is not to recommend admission, then the proceedings shall be transcribed, a copy of the transcript shall be placed in the applicant's file, and a formal hearing shall be conducted under Rule 36(d). Rule 36(c), RASC.

The Committee shall hold a formal hearing or hearings as may be reasonably required to enable the Committee to pass upon an applicant's qualifications. The applicant is to be given a notice of any such hearing, which specifies: the time, place and nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; a reference to the particular sections of the statutes and rules involved, if applicable; a short, plain statement as to the subject or subjects, and purpose, of the hearing; that the applicant may be represented by counsel at the hearing, shall have the right to respond and present evidence, and to cross-examine witnesses; and, that the applicant shall have the burden of proving, by a preponderance of the evidence, the requisite character and fitness qualifying the applicant for admission to the bar. Following the formal hearing(s), the Committee is to make its findings that the applicant meets the character and fitness requirements and should be admitted, or that the Committee is unable to make such findings and recommendation. The applicant is to be notified of the Committee's determination simultaneously. Rule 36(d), RASC.

Upon the issuance of a notice of an informal or formal hearing, the proceeding shall be and is considered a civil matter pending before the Supreme Court which has been referred to the Committee for hearings, findings and decision as to the right of the affected applicant to be admitted to the State Bar. All of the rules of civil procedure relating to and governing the conduct of depositions in civil proceedings, both within and without the state, shall apply. Either the Committee or the applicant may have the Clerk of the Supreme Court issue subpoenas for the attendance of witnesses. An application for the issuance of such a subpoena, however, must be made to a Justice of the Court. If a majority of members of the Committee determine that the proposed formal hearing will be complex, or for other sufficient reasons, the Committee may apply to the Chief Justice for the appointment of a special investigator to further investigate and present the evidence bearing upon the issue of the applicant's qualifications to be admitted. Rule 36(e), RASC.

At the formal hearing, the applicant or applicant's attorney may present evidence on behalf of the applicant. One or more members of the Committee, or the special investigator, if one has been appointed, may present evidence on behalf of the Committee. Any member of the Committee may be designated to preside over the hearing and to make all evidentiary and procedural rulings. The hearing is to be stenographically recorded and may be conducted without adherence to the Arizona Rules of Evidence. Copies of documentary evidence may be received at the discretion of the presiding Committee member, and notice can be taken of judicially cognizable facts. The applicant has the right to be represented by counsel, to submit evidence and to cross-examine, but the applicant has the burden of proving, by a preponderance of the evidence, the requisite character and fitness qualifying the applicant for admission. Rule 36(f), RASC.

If a majority of the Committee is present at a formal hearing, a decision can be rendered. Otherwise, the transcript of the proceedings is to be made available to all members, and a decision is to be made by a majority of the Committee as soon as practicable. The Committee's final decision must be in writing. If it recommends against admission, it must make separate findings of fact. The final decision is to be mailed to the applicant, with a copy mailed to the applicant's attorney of record, if any. Rule 36(f), RASC.

An applicant aggrieved by any decision of the Committee may have such decision reviewed by the Supreme Court by filing a verified Petition with the Court within twenty (20) days after the decision is rendered. A copy of the Petition is to be served upon the secretary of the Committee, and that Committee is to forward to the Court, within fifteen (15) days of service of the Petition, the applicant's file, together with all findings and reports prepared by or for the Committee, and a response to the Petition. The Supreme Court will then make such orders, hold such hearings or give such directions as it deems appropriate in light of the goal and obligation to insure that only qualified applicants are admitted to practice as attorneys. Rule 36(g), RASC.

Admission Procedures

Ordinarily, the oath of admission is administered to successful applicants at a ceremony organized for that purpose in Arizona. For good cause shown, the Chief Justice may permit the oath of admission to be administered by a judge of a court of general jurisdiction, or of an appellate court, outside the State of Arizona, by an American consul or qualified diplomatic officer if the applicant is living outside the United States, or by a commissioned officer if the applicant is in the armed forces and stationed outside the United States. An applicant wishing to have the oath administered in one of these fashions must file a written application stating the good cause for permitting the oath to be administered outside the State and identifying the person who is to administer it. Rule 37(b), RASC. An applicant who has successfully completed the requirements for admission must take the oath of admission within five (5) years of sitting for the bar examination. Rule 37(a), RASC.

All persons admitted shall complete the State Bar Course on Professionalism, or an approved equivalent, within one (1) year after admission, or be subject to summary suspension. Rule 34(e), RASC.

Records concerning applicants for admission shall be retained for seven (7) years from the date of admission, or from the date of the last activity in the record. Records of applicants and of proceedings of the Committee on Character and Fitness shall remain confidential, except that the Committee may disclose the records of an applicant to: the national Conference of Bar Examiners, the Bar of any other state to which the applicant seeks admission, an attorney discipline enforcement agency, or an agency authorized to investigate the qualifications of judicial candidates. Rule 37(c), RASC.

8.1:230      Admission on Motion

Except in the case of admissions pro hac vice, discussed in Section 8.1:240, infra, Arizona does not permit attorneys to become licensed to practice in Arizona "on motion," as that term is commonly employed. There are instances, however, where individuals, specifically law professors, may become active members of the State Bar without completing the examination requirements. In addition, clinical law professors, certain law students participating in an approved clinical law practice program, attorneys employed by approved legal services organizations, and what are termed "emeritus attorneys" may engage in the practice of law under carefully circumscribed circumstances prescribed in the Rules of the Arizona Supreme Court.

Law Professors

A full-time faculty member of the College of Law of the University of Arizona or of the College of Law of Arizona State University may become admitted as an active member of the State Bar of Arizona without examination by the Committee on Examinations. The individual must be a graduate of an accredited law school, be admitted to the bar of another State or the District of Columbia, and be recommended by the Dean of the Law School on whose faculty he or she serves. Those admitted under this provision who subsequently terminate their full-time faculty status do not retain their active Bar membership unless they pass the Arizona bar examination. Those admitted under this provision must limit their practice hours in accordance with the requirements of the applicable University, and in no event may engage in compensated practice for more than an average of eight (8) hours per week during each calendar year. Activities of clinical law professors in connection with supervision of a clinical law program are not considered compensated practice. Such law professor "applicants" must still be screened and recommended by the Committee on Character and Fitness. Rule 33(e), RASC.

Clinical Law Professors

A clinical law professor who is not a member of the bar but is certified under Rule 38(f)(1), RASC, may appear as a lawyer in any court or administrative tribunal, but only in connection with the supervision of a clinical law program approved by the Dean and Faculty of the University of Arizona College of Law or of the College of Law of Arizona State University. The appearance is limited to the types of matters for which eligible law students may appear, and there must be a written consent from the person on whose behalf the appearance is made filed in the record of the case. Rule 38(b), RASC. To make appearances under this Rule, a clinical law professor must be employed as a faculty member of the College of Law of the University of Arizona or the College of Law of Arizona State University for the purpose, inter alia, of instructing and supervising a clinical law program approved by the Dean and Faculty of the school, be admitted by examination to the bar of another state or the District of Columbia, not ask for or receive any compensation or remuneration from the person on whose behalf services are rendered, and certify familiarity with the Arizona Rules of Professional Conduct, the Rules of the Supreme Court and statutes of the State relating to the conduct of lawyers. Rule 38(e), RASC.

A certification of a clinical law professor by the Dean of the law school involved is to be filed with the Clerk of the Supreme Court and shall remain in effect until withdrawn. Rule 38(f), RASC. The certification of a clinical law professor may be withdrawn by the Dean at any time for any reason by filing a notice to that effect with the Clerk of the Supreme Court, who is to mail a copy of the notice to the professor affected, and may be terminated by the Court at any time without cause, notice or hearing. Id.

Clinical law professors that engage in the practice of law to the extent contemplated by these Rules will be deemed active members of the State Bar to that extent, without the requirement to pay dues. The rules of law and of evidence relating to privileged communications between attorney and client shall govern communications made or received by professors certified under the provisions of these Rules. Rule 38(h), RASC.

Students Participating in Clinical Programs

An "eligible" law student may appear in any court or administrative tribunal on behalf of any person who has indicated consent to such appearance in writing, both by the student and by the supervising lawyer, but only in the following types of matters: any civil matter, any misdemeanor criminal defense matter in Justice, Municipal and Magistrate Courts, and any felony criminal defense matter in Justice, Municipal, and Magistrate Courts and any criminal matter in Superior Court. Where the appearance is in a felony criminal defense matter or in Superior Court, the supervising lawyer must also be present. Rule 38(c), RASC.

An "eligible" law student may also appear in any criminal matter on behalf of the state or any political subdivision with the written approval of the prosecuting attorney. In every case, the consent or approval for the law student to appear must be filed in the record of the case and brought to the attention of the judge or the presiding officer of the administrative tribunal. Id.

Under the general supervision of a supervising lawyer, an "eligible" law student may engage in (1) the preparation of pleadings to be filed, but the pleadings must be signed by the supervising lawyer; (2) in the preparation of briefs, abstracts and other papers to be filed in the appellate courts, which must also be signed by the supervising lawyer; and, (3) in giving assistance to indigent inmates of correctional institutions who request such assistance in preparing applications for post-conviction relief except when the assignment of counsel is required by any constitutional provision statute or rule of court. If there is a lawyer of record in the case, that lawyer must supervise the law student and any documents filed must be signed by the lawyer of record. An "eligible" law student may also render legal advice and perform other services but only after prior consultation with and the express consent of the supervising lawyer. Eligible law students may participate in oral arguments in the Supreme Court and the Court of Appeals, but only with the supervising lawyer present. Id.

All the activities of law students authorized by this Rule must be part of the law school's educational and clinical law practice program approved by the Dean and Faculty of the school. A written statement of the contents of the school's educational and clinical law practice program must be filed with the Executive Director of the State Bar of Arizona prior to the commencement of the program. Id.

"Supervising lawyer" refers either to a clinical law professor or a member of the State Bar whose service as a supervising lawyer in each case is approved by the Dean of the law school in which the student is enrolled. The supervising lawyer must assume personal professional responsibility for guidance of the student and supervising the quality of the student's work. This responsibility cannot be delegated, except that the incumbent of a public office may designate one or more qualified deputies for this purpose. The supervising lawyer must also agree to serve as a supervising lawyer in either the program administered by the College of Law of the University of Arizona or the College of Law of Arizona State University. Rule 38(g), RASC.

Law students may make appearances under this Rule if they are enrolled in the College of Law of the University of Arizona or the College of Law of Arizona State University, or in some other law school accredited by the American Bar Association, are supervised by a member of the State Bar of Arizona, and have been certified by the Dean of the law school in which the student is enrolled on a form which shows compliance with the requirements of Rules 38(c)(6), 38(e)(2), 38(e)(3) and 38(g), RASC. The student must have successfully completed legal studies amounting to at least three (3) semesters and be certified by the Dean of the law school involved as being of good character and competent legal ability and as being adequately trained to perform as a legal intern, which shall include instruction in civil, criminal and courtroom procedure. Finally, the student may not ask for or receive any compensation or other remuneration from the person on whose behalf services are rendered and must certify familiarity with the Arizona Rules of Professional Conduct, the Rules of the Supreme Court and the statutes relating to the conduct of attorneys. This provision does not preclude a lawyer, legal aid bureau, law school, public defender agency or the state from paying compensation to the eligible law student, or prevent such agencies from making such charges for its services as it may otherwise properly require. Rule 38(e), RASC.

A certification of a law student as "eligible" under these Rules is to be filed with the Clerk of the Supreme Court and, unless sooner withdrawn, remains in effect until the expiration of eighteen (18) months after it is filed or until the announcement of the results of the first bar examination given after the student's graduation, whichever is earlier. The certification of a student may be withdrawn by the Dean at any time for any reason by filing a notice to that effect with the Clerk of the Supreme Court, who is to mail a copy of the notice to the law student affected, and may be terminated by the Court at any time without cause, notice or hearing. Rule 38(f), RASC.

Eligible students that engage in the practice of law to the extent contemplated by these Rules will be deemed active members of the State Bar to that extent, without the requirement to pay dues. The rules of law and of evidence relating to privileged communications between attorney and client shall govern communications made or received by students certified under the provisions of these Rules. Rule 38, RASC.

Attorneys Employed by Approved Legal Services Organizations

Rule 40, RASC permits attorneys who have been admitted to practice law in any other jurisdiction for at least two years and who are employed full time by an approved legal services organization in Arizona to practice before all courts in Arizona, under certain conditions.

An "approved legal services organization" is a not-for-profit legal services organization which has as one of its primary purposes the provision of legal assistance to indigents, free of charge, in civil matters and which has been approved by the Supreme Court. An organization seeking such approval must file a Petition with the Supreme Court certifying that it is a not-for-profit organization, and specifying the organization's structure and that it does not accept fees for services rendered from its clients, the major sources of funds used by the organization, the criteria used to determine eligibility of clients to receive funds from the organization, the types of legal and nonlegal services performed by the organization, the names of all members of the State Bar of Arizona who are employed by or who regularly perform legal work for the organization, and the existence and extent of malpractice insurance covering attorneys authorized to practice under this Rule. A copy of the Petition must be sent to the State Bar of Arizona which has ten (10) days to submit any comments it might have. A legal services organization is not approved until a formal order to that effect is entered by the Arizona Supreme Court. Rule 40(1), RASC.

An attorney seeking authority to practice under Rule 40 must file an application with the Arizona Supreme Court which must include: (1) a certificate from the highest court or agency in the jurisdiction where the applicant is licensed documenting that the applicant has fulfilled the requirements of active bar membership for at least two years preceding the date of the application and has not been disciplined for professional misconduct for five years, or during the time the applicant has been licensed, whichever is greater; (2) a statement signed by an authorized representative of an approved legal services organization that the applicant is employed full time by that organization; and, (3) a sworn statement that the applicant has read and is familiar with the Rules of the Supreme Court and of any Arizona statutes governing the conduct of lawyers and will abide by them, that the applicant submits to the jurisdiction of the Arizona Supreme Court for disciplinary purposes, and that the applicant has not been disciplined by the bar or courts of any jurisdiction within the past five years. A copy of the application must be served upon the State Bar of Arizona, which has a period of ten (10) days to make any objection it might have. An attorney is not authorized to practice under the Rule until the Arizona Supreme Court enters a formal Order to that effect. Rule 40(2), RASC.

An attorney authorized to practice under the Rule may only perform legal services for clients of the approved legal services organization by which the attorney is employed, and may not accept any compensation for such services except such salary as the organization may pay the attorney. Rule 40(4), RASC. An attorney authorized to practice under this Rule must be supervised by an attorney who is an active member of the State Bar of Arizona and who is also employed full time by the same legal services organization. Rule 40(5), RASC.

Authorization to practice law under Rule 40 automatically expires 24 months from the date of the Order granting such authority. If the attorney ceases full-time employment with the approved legal services organization within that 24-month period, the organization must notify the Supreme Court of that termination within five days of the termination. Rule 40(3), RASC.

Emeritus Attorneys Pro Bono Participation Program

Rule 39(1), RASC creates the Emeritus Attorneys Pro Bono Participation Program for the purpose of providing legal services to those unable to pay for them.

An "emeritus attorney" is one retired from the active practice of law who is or was formerly admitted to practice before the Arizona Supreme Court or the highest court of any other state or territory of the United States or the District of Columbia. The "emeritus attorney" must have been engaged in the active practice of law for a minimum of ten (10) out of the fifteen (15) years preceding application to participate in the program, must have been a member in good standing of the State Bar of Arizona or the entity governing the practice of law of any other state, territory or the District of Columbia, and must not have been disciplined for professional misconduct in any jurisdiction for fifteen (15) years preceding the application. If the attorney is not a retired member of the State Bar of Arizona, he or she must have graduated from a law school accredited by the American Bar Association and must not have failed the Arizona Bar Examination three (3) or more times. In addition, the emeritus attorney must agree to abide by the Arizona Rules of Professional Conduct and to submit to the jurisdiction of the Arizona Supreme Court for disciplinary purposes, must neither ask for nor receive compensation of any kind for legal services performed under the program, and must be certified by the Arizona Supreme Court. Rule 39(2), RASC.

An "approved legal assistance organization" is a not-for-profit legal assistance organization approved by the Supreme Court. An organization seeking such approval must file a Petition with the Supreme Court certifying that it is a not-for-profit organization, and specifying the organization's structure and whether it accepts funds from clients, the major sources of funds used by the organization, the criteria used to determine eligibility of clients to receive funds from the organization, the types of legal and nonlegal services performed by the organization, the names of all members of the State Bar of Arizona who are employed by or who regularly perform legal work for the organization, and the existence and extent of malpractice insurance covering the emeritus attorney. Rule 39(2), RASC.

A "supervising attorney" is an active member of the State Bar of Arizona who directs and supervises an emeritus attorney. A "supervising attorney" must be employed by or be a participating volunteer for an approved legal assistance organization, assume personal professional responsibility for supervising legal services in which the emeritus attorney participates, including the conduct of litigation or administrative hearings, and must assist the emeritus attorney to the extent the supervising attorney considers necessary. Rule 39(2), RASC.

An emeritus attorney, in association with an approved legal assistance organization and under the supervision of a supervising attorney, may appear in any court or before any administrative tribunal in Arizona on behalf of a client of an approved legal assistance organization, provided the person on whose behalf the emeritus attorney is appearing has consented in writing to that appearance and a supervising attorney has given written approval for that appearance. The written consent and approval must be made part of the record in the proceeding. The emeritus attorney may prepare pleadings and other documents to be filed in any Court or administrative tribunal in Arizona in proceedings in which the emeritus attorney is involved, but the pleadings must also be signed by the supervising attorney. The emeritus attorney may render legal advice and perform other appropriate legal services, but only after prior consultation with and upon the express consent of the supervising lawyer. Rule 39(3), RASC.

Emeritus attorneys must perform all activities under the direct supervision of a supervising attorney, and are not and may not represent themselves to be active members of the State Bar of Arizona. Emeritus attorneys may not charge for or receive compensation for the services they render, but the approved legal assistance organization may reimburse the emeritus attorney for actual expenses incurred while rendering services under the Program and may make such charges for its services as it may otherwise properly charge. The approved legal assistance organization is also entitled to receive any attorneys' fees awarded by a court for any services rendered by an emeritus attorney. Rule 39(4), RASC.

An emeritus attorney may only perform services under this Program upon approval of the Arizona Supreme Court. To secure such approval, an approved legal assistance organization must file a certificate stating that the emeritus attorney is currently associated with it and that an attorney employed by or participating with the organization as a volunteer will assume the duties of supervising attorney for the emeritus attorney. There must also be a certificate from the highest court or agency in the state, territory or district in which the emeritus attorney has been licensed to practice law that the emeritus attorney has fulfilled the requirements of active bar membership and has a clear disciplinary record. Finally, the emeritus attorney must submit a sworn statement that he or she has read and is familiar with the Rules of Professional Conduct, the Rules of the Arizona Supreme Court and the statutes of Arizona relating to the conduct of lawyers and will abide by them, and submitting to the jurisdiction of the Arizona Supreme Court for disciplinary purposes, and agreeing that he or she will neither ask for nor receive compensation of any kind for the legal services performed under the Program. Rule 39(5), RASC. Emeritus attorneys certified to participate in the Program are exempt from the mandatory legal education requirements of Rule 45, RASC. Rule 39(8), RASC.

A certification of an emeritus attorney ceases immediately upon the filing with the Supreme Court and the State Bar of Arizona of a notice from the approved legal assistance organization that the emeritus attorney has ceased to be associated with the organization. Such a notice must be filed within five (5) days after the association has ceased. An approved legal services organization may also file with the Supreme Court and the State Bar a notice that the certification of an emeritus attorney is being withdrawn, which notice need not state the cause for such withdrawal. A copy of such a notice must be mailed to the emeritus attorney. Finally, the Supreme Court may in its discretion at any time revoke permission to perform services under the Program. Copies of the notice of such a revocation must be mailed to the emeritus attorney and to the legal services organization with which the emeritus attorney is associated. Rule 39(6), RASC. If the certification of an emeritus attorney is withdrawn or revoked for any reason, the supervising attorney must notify any court or tribunal in which the emeritus attorney was appearing of such action. Id.

The emeritus attorney may be made subject to any disciplinary proceedings and sanctions authorized by the Rules of the Arizona Supreme Court, and may be found in civil contempt by the presiding judge or hearing officer in any matter in which the emeritus attorney has participated for any failure to abide by such tribunal's orders. Finally, the Supreme Court or the approved legal assistance organization may withdraw the certification of an emeritus attorney at any time, with or without cause. Rule 39(7), RASC.

Foreign Legal Consultants

Rule 33(f), RASC recognizes a category of professional described as "foreign legal consultants," and prescribes the procedures and requirements for securing a Certificate of Registration as a foreign legal consultant. That status is available to persons who are admitted to practice and are in good standing as an attorney or counselor at law or equivalent in a foreign country or political subdivision of a foreign country. Persons who receive such a Certificate of Registration may not appear in court on behalf of others, prepare real estate or testamentary documents, prepare documents in the domestic relations area, provide legal advice on the law of Arizona or of the United States, or in any way hold themselves out as a member of the State Bar of Arizona. Persons registered as foreign legal consultants are subject to professional discipline in the same manner and to the same extent as members of the State Bar, and must complete the State Bar Course on Professionalism. Rule 33(f), RASC.

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

An attorney who is a member in good standing of the bar of another state or territory or insular possession of the United States or the District of Columbia, but who is not admitted to practice in Arizona, may appear as counsel pro hac vice by following the procedures specified in Rule 33(d), Rules of the Supreme Court. That Rule was originally amended, effective December 1, 2001, to impose extremely complicated and onerous requirements for nonresident lawyers seeking pro hac vice admission in Arizona courts and before Arizona administrative agencies that conduct adjudicative functions. Because of objections to the amendments, and a motion for reconsideration, filed by several interested parties, the Supreme Court suspended the operation of the amended Rule indefinitely. By Order dated May 31, 2002, the Court adopted a revised amended version of Rule 33(d), which is to take effect September 1, 2002. As a consequence, pro hac vice applications made between now and August 31, 2002 must comply with the requirements of Rule 33(d) as it existed prior to December 1, 2001. Applications made on or after September 1, 2002 must comply with the requirements of the revised amended Rule, described hereinafter. (The revised amended Rule provides that pro hac vice status may only be granted for a period of one (1) year, and must be renewed annually thereafter. It does not address the question whether pro hac vice admissions granted under the pre-December 1, 2001 Rule, which contained no such provisions, are subject to this renewal requirement.)

Under the revised amended Rule, before even applying for pro hac vice admission, the out-of-state lawyer must first obtain from the State Bar of Arizona a form of Notice specified in the Rule. To obtain that Notice, the lawyer must submit to the State Bar the original and one copy of a verified application, which must be accompanied by a certificate from the state bar or clerk of the highest admitting court of each state in which the nonresident attorney has been admitted to practice, certifying the lawyer's date of admission and the lawyer's current membership status or eligibility to practice in that jurisdiction, and a non-refundable application fee equal to 85% of the current annual dues paid by active members of the State Bar of Arizona for the calendar year in which the application is made. Where pro hac vice admission is sought in many cases which constitute "consolidated or related matters," only one application and application fee is required per nonresident attorney. In the discretion of the State Bar, the application fee requirement may also be waived to permit pro bono representation of an indigent client by a nonresident attorney.

The verified application must be on a form approved by the State Bar Board of Governors, and must provide the following information: (1) the title of the case or cause, court, board or agency or docket number in which the nonresident attorney will be seeking to appear pro hac vice and whether that case is related to or consolidated with a matter in which the attorney has previously applied to appear pro hac vice (2) the nonresident attorney's residence and office address, (3) the courts to which the nonresident attorney has been admitted and the dates of such admission, (4) that the nonresident attorney is a member in good standing in such courts, (5) that the nonresident attorney is not currently suspended or disbarred in any court, (6) whether the nonresident attorney is currently subject to any pending disciplinary proceeding by any court, agency or similar organization and, if so, the jurisdiction where such proceeding is pending, the nature of the matter under investigation, and the name and address of the disciplinary authority investigating the matter, (7) whether the nonresident attorney has ever been disciplined by any court, agency or organization authorized to discipline lawyers, (8) the title of the court and cause and docket number of any case in Arizona in which the nonresident attorney has filed an application to appear as counsel in the preceding three (3) years, the date of such application, and whether it was granted, (9) the name, address and telephone number of local counsel, (10) the name of each party in the case (in which the nonresident attorney will seek to appear), and the name and address of counsel of record for each such party, (11) a certification by the nonresident attorney that he or she will be subject to the jurisdiction of the courts and agencies of the State of Arizona and of the State Bar of Arizona with respect to the law governing the conduct of attorneys to the same extent as an active member of the State Bar of Arizona, (12) a statement that the nonresident attorney will review and comply with appropriate rules of procedure as required in the case in question, and (13) a statement that the nonresident attorney understands and will comply with the standards of professional conduct required of members of the State Bar of Arizona.

Upon receipt of the verified application and application fee from the nonresident attorney, the State Bar will issue, to local counsel, a Notice of Receipt of Complete Application ("Notice") which states: (1) whether the nonresident attorney has previously submitted an application for pro hac vice admission in Arizona within the preceding three (3) years, (2) the date of such application or motion, and (3) whether the application or motion was granted or denied. The Notice is to include as exhibits the nonresident attorney's original verified application and the original certificates of good standing that accompanied it.

Local counsel then must file a motion to associate the nonresident attorney pro hac vice and serve the motion on all parties. The motion must be accompanied by (1) the original verified application submitted to the State Bar by the nonresident attorney, (2) the original certificates of good standing for the nonresident attorney, (3) the Notice issued to local counsel by the State Bar, and (4) a proposed order granting or denying the motion. The order granting or denying the motion to associate must be entered by the court or administrative agency in which it is filed within twenty (20) days after the motion is filed, and local counsel is required to send a copy of the order entered to the State Bar of Arizona.

The revised amended Rule does contain a provision which permits a court, board or administrative agency to permit a nonresident attorney to appear pro hac vice on a temporary basis pending completion of the application procedures specified in the Rule. Where such a temporary pro hac vice admission is granted, however, the court, board or administrative agency must specify a time period for the nonresident attorney to complete the application procedures, and any temporary pro hac vice admission is revoked if the nonresident attorney fails to do so.

The revised amended Rule specifically states that whether to grant a motion to associate a nonresident attorney pro hac vice is discretionary with the court or administrative agency to which it is submitted, and a nonresident attorney must associate local counsel who is a member in good standing of the State Bar of Arizona. The name of such local counsel must appear on all notices, orders, pleadings and other documents filed in the matter, and local counsel must accept joint responsibility with the nonresident attorney for the matter to the client, to opposing parties and counsel, and to the court or administrative agency in which the matter is pending. Local counsel may also be required to appear and participate in pretrial conferences, hearings, trials and other proceedings where the tribunal in question deems such appearance and participation appropriate.

Interestingly, the amended Rule specifies that a motion to associate nonresident counsel may be denied, or the authority of nonresident counsel to appear pro hac vice may be revoked, for "repeated appearances by any person or firm of attorneys pursuant to this rule," absent special circumstances such as a showing that the matter involves a complex area of the law in which the nonresident attorney possesses a special expertise or a lack of local counsel with expertise in the area of law involved in the case.

The order granting the associated nonresident attorney permission to appear pro hac vice is valid and effective only for a period of one (1) year, and must be renewed. In order to secure a renewal of the authority to appear, local counsel must certify to the State Bar of Arizona, on the anniversary date of the nonresident attorney's submission of the original verified application, whether (1) the nonresident attorney continues to act as counsel in the case, or (2) that the case has been fully adjudicated or otherwise concluded. If the nonresident attorney continues to act as counsel in the case, then that attorney must remit to the State Bar of Arizona a renewal fee equal to 85% of the current annual dues paid by active members of the State Bar of Arizona for the calendar year in which renewal is sought. Such renewals are also only valid and effective for a period of one (1) year, so that the renewal procedures and requirements must be followed and satisfied for each year that the nonresident attorney continues to act as counsel in the case. Failure to comply with the renewal procedures and requirements will result in the suspension of the nonresident attorney's authority to appear in any case in Arizona. The Executive Director of the State Bar is to notify the nonresident attorney, local counsel and any court or administrative agency involved of any such suspension. The nonresident attorney's authority to appear may then be reinstated by complying with the renewal procedures and requirements, and by paying the prescribed renewal fee plus a $50 late penalty.

Rule 33(d), RASC provides that counsel thus admitted pro hac vice "consents to the jurisdiction of the court for any alleged misconduct which occurs during the course of the matter," but does not define what constitutes "misconduct." Speer v. Donfeld, 193 Ariz. 28, 969 P.2d 193 (App. 1998). A pro hac vice admission should only be revoked for instances of behavior that, collectively or individually, amount to conduct that was intentionally wrong or that deliberately violated any law, court rule or order. Id.

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

AZ-ER 8.1(a) provides that a lawyer, or an applicant for admission to the bar, must not "knowingly make a false statement of material fact" in connection with a bar admission application or in connection with a disciplinary matter. Although there are no reported Arizona authorities involving the application of this rule to conduct occurring during the course of the application for admission process, it is clear that the Rule applies to statements made, or failures to disclose material information, to authorities administering the bar admission application process. As the Comment to this aspect of the Rule explains:

The duty imposed by this rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer's own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. . .

Comment, AZ-ER 8.1, ˆ 1. In addition, Rule 33(b), RASC specifies that the provisions of the Rules of the Supreme Court governing the admissions process do not operate as a limit on the Supreme Court's authority to revoke or suspend, after due notice and a hearing, the right of an attorney to practice law, for fraud or material representation in the procurement of admission to practice.

The Rule has been most frequently applied in the context of disciplinary proceedings against already admitted attorneys. As to that aspect of the Rule, the Supreme Court has observed:

We expect and demand candor in disciplinary proceedings, particularly because attorneys are officers of this court . . . Lying during such proceedings is one of the most serious ethical violations an attorney can commit and, absent mitigating circumstances, warrants the ultimate sanction of disbarment.

Matter of Varbel, 182 Ariz. 451, 454, 892 P.2d 1337, 1340 (1995) (citations omitted). Such conduct is not only grounds for the imposition of discipline, but is also an aggravating factor to be considered in deciding what discipline to impose. Matter of Fioramanti, 176 Ariz. 182, 859 P.2d 1315 (1993) (attorney manufactured evidence, committed perjury at deposition, and suborned perjury in obtaining and attempting to obtain false affidavits from other attorneys).

Read literally, AZ-ER 8.1 prohibits the making of false material statements and/or the failure to disclose material information during a disciplinary proceeding. Subpart (b) of the Rule, however, also makes it an ethical violation to "knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority . . ." This aspect of the Rule has been treated as in pari materia with Rules 51(h) and (i), RASC, which impose upon lawyers an obligation to cooperate with the disciplinary process and to furnish information requested by the disciplinary authorities, and make the failure to do so a separate ground for the imposition of discipline. Thus, the failure to participate in the disciplinary process, the failure to respond at all to requests for information from the disciplinary authorities, and even the failure to respond to such requests in a timely fashion have all been found to violate both AZ-ER 8.1, and Rules 51(h) and (i), RASC. See Matter of Brady, 186 Ariz. 370, 923 P.2d 836 (1996); Matter of Varbel, supra; Matter of Secrist, 181 Ariz. 526, 892 P.2d 862 (1995); Matter of Coburn, 181 Ariz. 250, 889 P.2d 608 (1995); Matter of Peartree, 180 Ariz. 518, 585 P.2d 1083 (1994); Matter of Engan, 180 Ariz. 13, 881 P.2d 345 (1994); Matter of Secrist, 180 Ariz. 50, 881 P.2d 1155 (1994); Matter of Woltman, 178 Ariz. 548, 875 P.2d 781 (1994); Matter of Miller, 178 Ariz. 257, 872 P.2d 661 (1994); Matter of Augenstein, 178 Ariz. 133, 871 P.2d 254 (1994); Matter of Augenstein, 177 Ariz. 581, 870 P.2d 399 (1994); Matter of Feeley, 176 Ariz. 196, 859 P.2d 1329 (1993); Matter of Evans, 175 Ariz. 404, 857 P.2d 1258 (1993); Matter of Soelter, 175 Ariz. 139, 854 P.2d 773 (1993); Matter of Martinez, 174 Ariz. 197, 848 P.2d 282 (1993); Matter of Blasnig, 174 Ariz. 9, 846 P.2d 822 (1993); Matter of Rantz, 169 Ariz. 56, 817 P.2d 1 (1991).

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

AZ-ER 8.1(b) makes it an ethical violation for a lawyer, or an applicant for admission, to "fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter . . ." As the Comment to this aspect of this Rule explains:

. . . Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

There are no Arizona authorities that elaborate upon this precise point, but see the discussion in Section 8.1:300, supra.

8.1:410      Protecting Client Confidential Information

The obligations imposed by AZ-ER 8.1(b) are qualified by the proviso that "this rule does not require disclosure of information otherwise protected by ER 1.6." The Comment to this aspect of the Rule merely observes:

A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including ER 1.6 and, in some cases, ER 3.3.

Comment, AZ-ER 8.1, ˆ 1. There are no Arizona authorities that elaborate upon this precise point,

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Rules 71, 72 and 73, RASC, prescribes the procedures by which a lawyer who has been disbarred, suspended for a period of five (5) years or more, or transferred to disability inactive status, may seek reinstatement as an active member of the State Bar of Arizona. Neither AZ-ER 8.1 nor the accompanying Comment address the issue whether they apply to proceedings under these Rules. By pursuing the procedures set forth in these Rules, however, a nonmember is in effect seeking to become an active member of the State Bar and entitled to practice law in this State. This process is at least analogous to an application for admission, a process to which AZ-ER 8.1 clearly applies. It would seem only logical, accordingly, for the Rule to apply to reinstatement proceedings as well, but there are no Arizona authorities that specifically address this issue.

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Arizona Rule

8.2:101      Model Rule Comparison

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

AZ-ER 8.2 and its accompanying Comment are identical to MR 8.2 and its accompanying Comment.

8.2:102      Model Code Comparison

Former DR 8-102(A) provided that: "A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office." Former DR 8-102(B) provided that: "A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer." Former DR 8-103 and AZ-ER 8.2(b) are sustantially identical.

8.2:200   False Statements About Judges or Other Legal Officials

AZ-ER 8.2(a) provides that a statement that the lawyer knows to be false, or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of (1) a judge, adjudicatory officer or public judicial officer, or (2) a candidate for election or appointment to judicial or legal office. As the Comment explains:

Assessments by lawyers are relied upon in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

Comment, AZ-ER 8.2, ˆ 1.

In Matter of Riley, 142 Ariz. 604, 691 P.2d 695 (1984), which arose under the former Code of Professional Responsibility, the Supreme Court approved a public censure of a lawyer, who had become a judge, for making derogatory comments about his opponent, who was an incumbent judge, during the course of their campaign for election to that judicial office. After resolving the threshold jurisdictional question concerning whether the State Bar Disciplinary Board had jurisdiction to impose discipline upon a judge for activities that occurred while the judge was a lawyer, the Court observed that: "Generally, and also during a judicial campaign, a lawyer may accurately criticize a sitting judge, but may not impugn the integrity of the judicial system or question the decisions of the judge." Id., 142 Ariz. at 612, 691 P.2d at 703. The Court then elaborated:

We believe that candidates for judicial office have a First Amendment right to criticize an incumbent judge for such matters as intemperate behavior, injudicious actions, lack of judicial temperament, unpredictability, and unnecessary delay in rendering decisions. We are aware that the line between fair comment and impermissible comment is indistinct and also that judges are relatively helpless to defend themselves from such attacks. Nevertheless, in jurisdictions that require the election of judges, such comment must be allowed.

Lawyers who are candidates for judicial office may not impugn the integrity of the judicial system or question the decisions of the judge . . . Lawyers may make fair comment on the judge's fitness so long as the comment does not call into question decisions of the court or question the integrity of the judicial system.

Id., 142 Ariz. at 613, 691 P.2d at 704 (citation omitted).

8.2:300   Lawyer Candidates for Judicial Office

AZ-ER 8.2(b) provides that a lawyer who is a candidate for judicial office is to comply with the applicable provisions of the code of judicial conduct. The Comment to this aspect of the Rule explains that: "When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity." Comment, AZ-ER 8.2, ˆ 2. That proscription will have little or no applicability to applicants for appointment to the Arizona Supreme Court, the Arizona Court of Appeals or the Superior Courts in Maricopa and Pima Counties, as those positions are subject to the "merit selection" process described in Article VI, Sections 36 through 42 of the Arizona Constitution.

Section 36 creates a Commission on Appellate Court Appointments, composed of the Chief Justice of the Supreme Court, who serves as Chair, five attorney members, nominated by the Board of Governors of the State Bar and appointed by the Governor with the advice and consent of the Senate, and ten nonattorney members also appointed by the governor with the advice and consent of the Senate. Section 37 (A) provides that when a vacancy occurs on the Supreme Court or an intermediate appellate court of record, this Commission reviews applications for that position, interviews some or all of the applicants, and then submits to the Governor the names of not less than three persons nominated by it to fill the vacancy, no more than two of whom shall be members of the same political party, unless there are more than four such nominees, in which event not less than 60% of such nominees shall be from the same political party.

Section 41(B) creates, in counties having a population of 250,000 or more a Commission on Trial Court Appointments, which shall be composed of the Chief Justice of the Supreme Court, or any other Supreme Court Justice designated by the Chief Justice, five attorney members nominated by the Board of Governors of the State Bar and appointed by the Governor subject to Senate confirmation, and ten nonattorney members. Under Section 37(B), when a vacancy occurs in the Superior Court of any such County (at present, only Maricopa and Pima Counties satisfy the population requirement), this Commission considers applications for that position, interviews some or all of the applicants, and submits to the Governor the names of not less than three persons nominated by it to fill the vacancy, no more than two of whom shall be members of the same political party, unless there are more than four such nominees, in which event no more than 60% may be members of the same political party. Judges selected through this merit selection process, whether at the trial court or the appellate level, must stand for a "retention" election every four years following their appointment.

Under Section 40, Counties with populations of less than 250,000 persons may elect to have the Judges of the Superior Court in that County selected according to this "merit selection" process. To date, no such smaller County has made such an election, and Superior Court Judges in those Counties are elected in the general election every four years.

As to those applicants, it would seem inappropriate and unworkable to apply many of the limitations on political activity imposed by Canon 5(A) of the Arizona Code of Judicial Conduct, Rule 81, Rules of the Arizona Supreme Court. Canon 5(B), however, is expressly made applicable to a candidate for a judicial office that is filled by public election "or on the basis of a merit selection or retention election." Canon 5(B)(1)(a) requires a candidate for judicial office to "maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary," and to encourage members of the candidate's family to adhere to the same standards of political conduct as apply to the candidate. Canon 5(B)(1)(d), which prohibit candidates for judicial office from (1) making pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (2) making statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; (3) knowingly misrepresenting the identity, qualifications, present position or other fact concerning the candidate or an opponent; or (4) announce the candidate's views on disputed political or legal issues. Canons 5(B)(b) and (c) basically prohibit candidates for judicial office from using employees or any other person to do what Canon 5 prohibits the candidate from doing.

In all Counties other than Maricopa and Pima, positions on the Superior Court are filled by a public general election. Lawyers who become candidates for a position on the Superior Court in one of those Counties must comply, not only with the restrictions imposed by Canon 5(B), described above, but with the restrictions on political activity imposed by Canon 5(A) as well. Canon 5(A)(1) prohibits a judge or candidate for judicial office from (1) acting as a leader or holding any office in a political organization; (2) making speeches for a political organization or candidate; (3) publicly endorsing a candidate for public office; (4) soliciting funds for or paying an assessment to a political organization or candidate; (5) making contributions to a political party or organization or to a non-judicial candidate in excess of a combined total of $250.00 per year; (6) actively taking part in any political campaign other than his or her own election, reelection or retention in office. Canons 5(A)(2) and (3) permit a judge or a non-judge candidate for judicial office to speak to political gatherings on his or her own behalf, and to purchase tickets for political dinners or similar functions, so long as attendance at such functions does not constitute a public endorsement of a candidate or cause. Under Canon 5(A)(4), a judge must resign from judicial office upon becoming a candidate for a non-judicial office, either in a primary or general election, except where the candidacy is for election to serve as a delegate in a state constitutional convention.

In Matter of Riley, 142 Ariz. 604, 691 P.2d 695 (1984), which arose under the former Code of Professional Responsibility, the Supreme Court approved a public censure of a lawyer, who had become a judge, for making derogatory comments about his opponent, who was an incumbent judge, during the course of their campaign for election to that judicial office. After resolving the threshold jurisdictional question concerning whether the State Bar Disciplinary Board had jurisdiction to impose discipline upon a judge for activities that occurred while the judge was a lawyer, the Court observed that: "Generally, and also during a judicial campaign, a lawyer may accurately criticize a sitting judge, but may not impugn the integrity of the judicial system or question the decisions of the judge." Id., 142 Ariz. at 612, 691 P.2d at 703. The Court then elaborated:

We believe that candidates for judicial office have a First Amendment right to criticize an incumbent judge for such matters as intemperate behavior, injudicious actions, lack of judicial temperament, unpredictability, and unnecessary delay in rendering decisions. We are aware that the line between fair comment and impermissible comment is indistinct and also that judges are relatively helpless to defend themselves from such attacks. Nevertheless, in jurisdictions that require the election of judges, such comment must be allowed.

Lawyers who are candidates for judicial office may not impugn the integrity of the judicial system or question the decisions of the judge . . . Lawyers may make fair comment on the judge's fitness so long as the comment does not call into question decisions of the court or question the integrity of the judicial system.

Id., 142 Ariz. at 613, 691 P.2d at 704 (citation omitted).

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Arizona Rule

8.3:101      Model Rule Comparison

The changes made to this Rule by the 2003 amendments were not substantive; the phrase "having knowledge" in paragraphs (a) and (b) was replaced with "knows."

AZ-ER 8.3 is generally similar to MR 8.3, but there are some differences. At the conclusion of subpart (a) of the Rule, Arizona has added the phrase "except as otherwise provided in these rules or by law." This phrase does not appear in MR 8.3(a). In addition, AZ-ER 8.3(c) provides an exception for information acquired by a lawyer or judge "while serving as a member of an approved lawyers assistance program to the extent that such information would be confidential if it related to the representation of a client." MR 8.3(c)'s formulation is "while participating in an approved lawyers assistance program." The Comments to the two Rules are substantially identical, except that the final sentence of paragraph 5 reflects the differences between AZ-ER 8.3(c) and MR 8.3(c) discussed supra.

8.3:102      Model Code Comparison

DR 1-103(A) of the former Rules of Professional Conduct required a lawyer "possessing unprivileged knowledge of a violation of a Disciplinary Rule" to "report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."

8.3:200   Mandatory Duty to Report Serious Misconduct

AZ-ER 8.3(a) imposes upon lawyers a duty to report to the appropriate professional authority knowledge that a lawyer acquires that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the latter lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. While the Rule contains the qualifying language "except as otherwise provided in these rules or by law," the only provision that seems to fall within that description is AZ-ER 8.3(c), discussed in Section 8.3:400, infra, that the Rule dose not require disclosure of information required to be kept confidential by AZ-ER 1.6. A similar requirement to report violations of the applicable rules of professional conduct that raise a substantial question as to a judge's fitness for office is imposed by AZ-ER 8.3(b), discussed in Section 8.3:300, infra. The Comment to the Rule explains the rationale for imposing such an obligation:

Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

Comment, AZ-ER 8.3, ˆ 1.

The Comment, however, also stresses that the reporting requirement applies only to offenses that satisfy the criteria set forth in the Rule, and that lawyers must exercise some judgment in deciding whether the knowledge they have acquired concerning the misconduct of a lawyer gives rise to a reporting obligation:

If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

Comment, AZ-ER 8.3, ˆ 3.

The failure to report misconduct of a lawyer that satisfies the requirements of the Rule is grounds for the imposition of discipline on the non-reporting lawyer. Matter of Woltman, 181 Ariz. 525, 892 P.2d 861 (1995). Unfortunately, that Opinion was merely the affirmance of a determination of the Disciplinary Commission that the disbarment of Mr. Woltman should be continued for, among other things, violations of AZ-ER 8.3(a), and does not describe the conduct that formed the basis for the violation. The principal source of guidance as to the requirements of AZ-ER 8.3, accordingly, derives from Opinions of the Committee on the Rules of Professional Responsibility ("the Committee").

In Arizona Ethics Opinion No. 89-06, although it was unable to provide a definitive answer to the problem presented because of a lack of adequate factual information, the Committee stressed the importance of, as well as the limitations upon, the Rules reporting obligations:

. . . each of us must be aware of the possibility that our brethren at the bar are not infallible. We must all be sensitive to potential ethical violations which appear around us and in cases in which we are involved. In those instances where the violation appears sufficiently substantial as to raise questions as to the lawyer's honesty, trustworthiness or fitness as a lawyer, each of us is under an affirmative obligation to report that misconduct. Conversely, where the apparent violation is not of that stature, we should not burden the State Bar disciplinary staff with such minor complaints.

Id., p. 8. The Committee soon followed with Arizona Ethics Opinion No. 90-13, in which it stated that the duty applied only to reports of another lawyer's misconduct, that the lawyer must have actual knowledge that a violation of the Rules of Professional Conduct has occurred, and the conduct in question must raise a substantial question as to the other lawyer's honesty, trustworthiness or fitness. The Committee also held that AZ-ER 8.3's duty to report is overridden by the duty to preserve client confidences, which is discussed further in Section 8.3:400, infra, and that there is no duty to report if the lawyer is confident that the conduct in question has already been accurately and completely reported to the appropriate authority. In addressing the specific questions which lead to the issuance of this Opinion, the Committee stated that, when attorneys in a firm become aware that a partner in the firm has misappropriated firm funds, each of the attorneys has a duty to report which can be fulfilled by any one of them making a complete and accurate report, but that a lawyer who has learned in the course of representing a client that the client's former lawyer raped her has no duty to report, if the client wishes the information to remain confidential, and none of the exceptions to AZ-ER 1.6 apply.

In Arizona Ethics Opinion No. 98-02, the Committee held that the filing of an affidavit of ineffective assistance of criminal defense counsel does not necessarily trigger the reporting obligation of AZ-ER 8.3, and the lawyer considering the issue must use the analysis set forth in AZ-ER 8.3 and Arizona Ethics Opinion No. 90-13 to determine, on a case-by-case basis, whether the ineffective assistance charged raises a substantial question as to defense counsel's honesty, trustworthiness, or fitness to practice law. The Committee provided quite similar advice, in Arizona Ethics Opinion No. 94-09, to a lawyer raising the issue whether there was an obligation to report that another lawyer considered to be a clearly excessive fee in a probate matter.

In Arizona Ethics Opinion No. 90-06, the Committee ruled that it would be unethical for an attorney to enter into a settlement agreement on behalf of a client which called for the attorney to agree not to report the misconduct of opposing counsel to the disciplinary authorities. In Arizona Ethics Opinion No. 87-26, the Committee held that an attorney knows that another lawyer has failed to file an income tax return has a duty to inform the appropriate professional authorities of that unless, based on the facts available, the inquiring attorney is convinced that the failure to file was not wilful within the meaning of the applicable criminal statutes, and does not otherwise reflect on the other lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. In Arizona Ethics Opinion No. 87-19, the Committee considered an inquiry from an attorney who had discovered that conversations in so-called "quiet rooms," which were segregated for private conversations between public defenders and detainees, were being monitored by detention staff personnel. The Committee advised the inquiring attorney that if the attorney was aware of any lawyers or judges who authorized, knew or took advantage of the information gained as a result of such monitoring, there might be an obligation to report the information to the appropriate authorities.

These decisions of the Committee are quite consistent with opinions issued while the former Model Code of Professional Responsibility was in effect in Arizona. In Arizona Ethics Opinion No. 84-18, the Committee held that an attorney at the Public Defender's Office, with knowledge of a possible colorable claim of ineffective assistance of counsel involving another public defender, had no duty to notify the State Bar Discipline Department or the Court and had no duty to volunteer information to another attorney investigating the claim, unless the conduct giving rise to the potential claim violated an ethical rule. Correspondingly, however, the Committee ruled that a Public Defender's Office may not prohibit a staff attorney or employee from preparing and/or signing an affidavit asserting a claim of ineffective assistance of counsel by another member of the Office.

In Arizona Ethics Opinion No. 81-29, the Committee held that a prosecutor who learns that another attorney in the office previously represented a criminal defendant who is being charged by the office with a new criminal offense must inform the chief prosecutor. Similarly, in Arizona Ethics Opinion No. 81-04, the Committee riled that a lawyer referral service that receives information from a client concerning the misconduct of a referred attorney has a duty to file a complaint with the Discipline Department of the State Bar.

8.3:300   Reporting the Serious Misconduct of a Judge

AZ-ER 8.3(b) imposes upon lawyers a duty to report to the appropriate authority knowledge they acquire that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office. The "applicable rules of judicial conduct" in Arizona is the Arizona Code of Judicial Conduct, Rule 81 of the Rules of the Arizona Supreme Court. The "appropriate authority" is the Commission on Judicial Conduct, created by Article 6.1 of the Arizona Constitution, which has issued Rules of Procedure for the Commission on Judicial Conduct to govern its operations.

The only Arizona authority that touches at all upon a lawyer's duty to report judicial misconduct is Arizona Ethics Opinion No. 87-19, in which the Committee considered an inquiry from an attorney who had discovered that conversations in so-called "quiet rooms," which were segregated for private conversations between public defenders and detainees, were being monitored by detention staff personnel. The Committee advised the inquiring attorney that if the attorney was aware of any lawyers or judges who authorized, knew or took advantage of the information gained as a result of such monitoring, there might be an obligation to report the information to the appropriate authorities.

8.3:400   Exception Protecting Confidential Information

AZ-ER 8.3(c) expressly provides that: [T]his rule does not require disclosure of information otherwise protected by ER 1.6 . . ." A similar restriction is placed upon the disclosure of information secured by a lawyer while serving as a member of an approved lawyers' assistance program, but only to the extent that the information would be confidential if it were communicated subject to the attorney-client privilege and confidentiality has not otherwise been waived. As the Comment to this portion of the Rule notes, however:

A report about misconduct is not required where it would involve violation of ER 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

Comment, AZ-ER 8.3, ˆ 2.

In Arizona Ethics Opinion No. 90-13, the Committee concluded that the presence of this provision in the Arizona Rule distinguished the Arizona ethical regime from that presented in In re Himmel, 125 Ill.2d 531, 533 N.E. 2d 790 (1988), and held that the duty to report the misconduct of other lawyers was overridden by the duty to keep confidential information relating to the representation of a client. Addressing one of the specific inquiries which lead to the issuance of that Opinion, the Committee held that a lawyer who has learned in the course of representing a client that the client's former lawyer raped her has no duty to report this information, if the client wishes it to remain confidential, and none of the exceptions to AZ-ER 1.6 apply.

Similarly, in Arizona Ethics Opinion No. 94-12, the Committee ruled that a lawyer may refrain from or delay reporting the misconduct of a client's former lawyer, at the request of the client, when the underlying information upon which the report or complaint would be based was disclosed to the inquiring attorney during the course of representing the client and is, therefore, protected by AZ-ER 1.6.

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Arizona Rule

8.4:101      Model Rule Comparison

The 2003 amendments added to paragraph (e) of the Rule language making it misconduct for a lawyer to state or imply an ability to achieve results by illegal or unethical means. This is similar to language that appeared in former AZ-ER 7.1(a)(2), and it was relocated to this Rule to make clear that such a statement is misconduct regardless whether it is made in connection with the marketing of legal services.

AZ-ER 8.4 and its accompanying Comment are substantially identical to MR 8.4 and its accompanying Comment. Paragraph 3 of the Comment to AZ-ER 8.4 has a reference to bias or prejudice on the basis of "gender identity," which is not contained in the Comment to MR 8.4.

8.4:102      Model Code Comparison

With regard to AZ-ER 8.4(a) through (d), DR 1-102(A) of the former Code of Professional Responsibility provided that: "A lawyer shall not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary rule through actions of another.

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice."

AZ-ER 8.4(e) is substantially similar to former DR 9-101(C).

There was no direct counterpart to Rule 8.4(f) in the Disciplinary Rules of the former Code. EC 7-34 stated in part that: "A lawyer . . . is never justified in making a gift or a loan to a judicial officer except as permitted by . . . the Code of Judicial Conduct." EC 9-1 stated that: "A lawyer should promote public confidence in our legal system and in the legal profession."

8.4:200   Violation of a Rule of Professional Conduct

AZ-ER 8.4 sets forth six nominally separate categories of actions that constitute "professional misconduct for a lawyer." The Rule needs to be considered in conjunction with Rule 51(a) of the Rules of the Arizona Supreme Court, which specifies the following as grounds for the imposition of discipline: (a) conviction of a misdemeanor involving a serious crime or of any felony; (b)÷violation of a rule of professional conduct in effect in the jurisdiction; (c)÷discipline imposed in another jurisdiction; (d) violation of a canon of judicial conduct; (e) willful disobedience or violation of an order or rule of court compelling or forbidding action in connection with or in the course of the profession; (f) violation of any discipline or disability rule or order; (g) any violation of the oath taken as a lawyer; (h) failure to furnish information to or respond promptly to any inquiry or request from Bar Counsel, a Hearing Committee or Hearing Officer, the Board, the Disciplinary Commission or the Supreme Court; (I) evading service or otherwise refusing to cooperate with officials and staff of the State Bar, Hearing Committees, Hearing Officers, or a conservator appointed under the Rules; (j) violation of a condition of probation imposed in a discipline proceeding; and (k) willful violation of a court order of a state, territory or district of the United States, including child support orders. Rule 51(a), RASC. The process for considering charges of professional misconduct and determining whether and, if so, what, sanctions should be imposed is described in Section 0.2:240, supra.

The first of the categories of "professional misconduct" is that set forth in AZ-ER 8.4(a): "violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another . . . ." What conduct violates the Arizona Rules of Professional Conduct is discussed in the preceding Chapters devoted to the requirements of individual Rules.

In In Matter of Bemis, 189 Ariz. 119, 938 P.2d 1120 (1997) (in banc), an attorney was found to have violated AZ-ER 8.4(a) and (d) when he tried to have ex parte meetings with two different judges about pending litigation, once by going to the judge's chambers and demanding to speak to him, and a second time by filing a pleading asking the court to contact him ex parte. The attorney also violated AZ-ER 8.4(c) and (d) by submitting a proposed order to the court that was sarcastic in tone and contained statements outside the scope of the court's minute entry.

In In re Walker, 200 Ariz. 155, 24 P.3d 602 (2001), the Supreme Court held that an attorney who made sexual overtures to a client violated both AZ-ER 1.7 and AZ-ER 8.4.

8.4:300   Commission of a Crime

AZ-ER 8.4(b) provides that it is "professional misconduct" for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects . . . ." As the Comment to the Rule elaborates:

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even one of minor significance when considered separately, can indicate indifference to legal obligation.

Comment, AZ-ER 8.4, ˆ 2.

In Arizona, discipline is appropriate when a lawyer has been convicted of any felony or of a misdemeanor involving a serious crime. Rules 51(a), 57(a), RASC. "Serious crime" is defined as any crime a necessary element of which involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful extortion, misappropriation, theft or moral turpitude. Conspiracy or attempt to commit a serious crime, or soliciting another to commit a serious crime also constitutes a "serious crime." Rule 57(a), RASC. See discussion in Section 0.2:245, supra.

In Arizona, there are certain offenses, referred to as "Class 6 offenses," which are not characterized as either felonies or misdemeanors. Notwithstanding the fact that A.R.S. § 13-702(G) provides, with respect to such offenses, that: "The offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor." Conviction of a Class 6 offense is not considered to be conviction of a felony for disciplinary purposes, and does not result in the convicted lawyer's automatic suspension, unless the offense qualifies as a "serious crime," as defined in Rule 57(a). Matter of Beren, 178 Ariz. 400, 874 P.2d 320 (1994). The State Bar is, of course, free to proceed against the lawyer on the basis of the underlying conduct. Id.

Upon the conviction of a member of the State Bar of any crime, the Clerk of the Court in which the conviction occurred must, within twenty (20) days of the conviction, transmit to the Supreme Court and the State Bar a certified copy of the judgment of conviction. Rule 57(a), RASC. Receipt by the State Bar of such a certified copy of a judgment of conviction, or of any other information indicating that a lawyer has been convicted of a crime, is to be treated and processed as is any other disciplinary charge, except that the sole issue to be determined is the extent of the discipline to be imposed. Id. Proof of conviction is conclusive evidence of guilt of the crime in any disciplinary proceeding based on the conviction. Id.

Within ten (10) days after the conviction of a member of a felony under either state or federal law, whether that conviction follows a guilty plea, a plea of nolo contendere, not guilty or otherwise, and regardless of the pendency of post-conviction proceedings or an appeal, that member is to be automatically suspended from the practice of law, unless the member files with the Supreme Court, within that ten-day period, a verified motion showing good cause why suspension should not be ordered. Rule 57(b), RASC. The Court may grant oral argument on the motion. Id. If the motion is granted, then the lawyer shall not be suspended pending completion of any disciplinary proceeding based on the conviction. Id. If the motion is denied, then the lawyer shall be suspended as of the date of the denial of the motion. Id.

Upon conviction of a member of a "serious crime" other than a felony, the State Bar may file with the Supreme Court a motion seeking the member's suspension pending final disposition of a disciplinary proceeding based on the conviction. Rule 57(c), RASC. The respondent lawyer must file, within ten (10) days, a verified response showing good cause why an interim suspension should not be ordered, and the Court may permit oral argument. Id. If the motion is granted, then the lawyer shall be suspended as of the date of the Order granting the motion. Id.

If a lawyer who has been suspended solely by operation of Rule 57(b) or 57(c) (conviction of a felony or serious crime) demonstrates that the underlying conviction has been reversed or vacated, the order for interim suspension shall also be vacated and the lawyer returned to active status. Rule 57(d), RASC. The vacating of the interim suspension order does not operate to terminate any disciplinary proceeding then pending against the lawyer, the disposition of which is to be determined on the basis of the available evidence. Id.

An interim suspension order entered because of a member's conviction of a felony or of a serious crime constitutes the suspension of a lawyer for purposes of the notice requirements imposed by Rules 63(a) and (b). Rule 57(e), RASC. A lawyer subjected to such an interim suspension order must, within ten (10) days, cause the following persons to be notified, by registered or certified mail, return receipt requested, of the suspension, and of the fact that the lawyer is disqualified to act as a lawyer: (1) all clients represented in pending matters, (2) any co-counsel in pending matters, (3) any opposing counsel or unrepresented adverse parties in pending matters, and (4) each court and division in which the lawyer has any pending matter, whether active or inactive. Rule 63(a), RASC. The notice to opposing counsel and parties is to state the place of residence of the client in the matter. Id. If a client does not obtain substitute counsel before the effective date of the suspension, then the lawyer must move for leave to withdraw. Id. The lawyer must also return to all clients being represented in pending matters all papers or other property to which they are entitled, and notify them of a suitable time and place where those papers and property may be obtained. Rule 63(b), RASC. Respondent must also deliver all files and records in pending matters to the client, regardless of any attorney's lien. Id.

In Matter of Savoy, 181 Ariz. 368, 891 P.2d 236 (1995), an attorney's criminal conviction for perjury was found to be conclusive evidence of guilt for purposes of a disciplinary proceeding, and the attorney was consequently disciplined for violation AZ-ER 8.4(a) through (d). An attorney was found to have violated AZ-ER 8.4 after he pleaded guilty to the felony of negligent homicide. In Matter of Horwitz, 180 Ariz. 20, 881 P.2d 352 (1994). Similarly, an attorney was found to have violated AZ-ER 8.4(b) after pleading guilty to felony conspiracy charges for the promotion of gambling. Matter of Schwartz, 176 Ariz. 455, 862 P.2d 215 (1993). An attorney convicted of aggravated driving, a felony, for driving while under the influence of alcohol and driving with a suspended license has been found subject to professional discipline for violating AZ-ER 8.4(a). Matter of Keefe, 172 Ariz. 394, 837 P.2d 1129 (1992).

In Matter of Riches, 179 Ariz. 212, 877 P.2d 785 (1994), an attorney was disciplined for violation, inter alia, both AZ-ER 8.4(b) and (c) for misappropriating funds from personal injury settlements that belonged to his law firm and its clients.

In re Scholl, 200 Ariz. 222, 25 P.3d 710 (2001) involved a Judge of the Pima County Superior Court who had been convicted of seven felonies: four counts of filing false tax returns and three counts of structuring currency transactions to avoid Treasury reporting requirements. The conduct leading to these convictions had all occurred while Scholl was a Judge, but he resigned his position following the convictions. The Supreme Court held that the convictions were clearly for offenses that reflected adversely on Scholl's honesty, trustworthiness or fitness as a lawyer and warranted the imposition of discipline.

In Arizona Ethics Opinion No. 87-26, the Committee on the Rules of Professional Conduct ruled that an attorney who has knowledge of another lawyer's failure to file a personal income tax return has a duty, under AZ-ER 8.3 to report such conduct, which would constitute a violation of AZ-ER 8.4(b), to the disciplinary authorities.

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Another category of conduct listed in AZ-ER 8.4(c) as constituting professional misconduct is "conduct involving dishonesty, fraud, deceit or misrepresentation . . . ." The Comment accompanying the Rule also adds:

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

Comment, AZ-ER 8.4, ˆ 5.

In Matter of Duckworth, 185 Ariz. 197, 914 P.2d 900 (1996), an attorney was found to have violated AZ-ER 8.4(c) by providing false opinion letters to purchasers of real estate from the attorney's client. Similarly, in Matter of Olsen, 180 Ariz. 5, 881 P.2d 337 (1994), an attorney not a member of the Arizona Bar was censured for submitting a false affidavit to an Arizona court. In Matter of Hansen, 179 Ariz. 229, 877 P.2d 802 (1994), an assistant city prosecutor was disciplined for violations of AZ-ER 8.4(c) for lying to a court to cover up an error in prematurely releasing a witness before trial.

AZ-ER 8.4(c), quite obviously, encompasses failures to disclose facts necessary to make statements made not misleading or where there is otherwise an obligation to disclose. Thus, in Matter of Fee, 182 Ariz. 597, 898 P.2d 975 (1995), an attorney was disciplined for failing to disclose to a judge conducting a settlement conference a separate agreement requiring the attorney's client to pay attorneys' fees in addition to those called for in the settlement agreement reached at the conference. Similarly, in Hmielewski v. Maricopa County, 192 Ariz. 1, 960 P.2d 47 (App. 1997), the Court suggested that the failure to disclose to the Court a secret agreement between defense counsel and plaintiff's counsel to not object to plaintiff's evidence in exchange for an agreement by the plaintiff to dismiss the case before judgment was entered violated AZ-ER 8.4. On the other hand, in Arizona Ethics Opinion No. 94-13, the Committee on the Rules of Professional Conduct (the "Committee") ruled that an attorney is not required to disclose a prior representation of a court-appointed mental health professional expert witness in an unrelated matter in the past absent some showing that the former relationship would predispose the expert in some unusual way to favor the attorney's client. Similarly, the attorney need not withdraw from the present representation unless there is some unusual bias on the expert's part, or the attorney would be restricted in cross-examining the expert due to the prior representation. Id.

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).

The Committee on the Rules of Professional Conduct ("the Committee") has consistently found that conduct involving "an element of deceit and misrepresentation" will violate AZ-ER 8.4(c). That was the express rationale of the Committee's decision, in Arizona Ethics Opinion No. 95-03, that the surreptitious recording of telephone conversations with opposing counsel was unethical. The Committee's position on the surreptitious recording of telephone conversations with, or interviews of, prospective witnesses, however, has evolved to a very different posture. 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 records 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.

Finally, in Arizona Ethics Opinion No. 2000-04, the Committee considered an inquiry from an attorney whose client desired to record conversations between the client's child and the child's other parent. After initially concluding that it would be unethical to do so, the Committee issued an amended Opinion holding that the attorney could ethically advise the client that she could record a conversation in which one party has not given consent to the recording, if the attorney concluded that the recording would not be prohibited by federal or state law. The Committee cautioned, however, that if the attorney concluded that the proposed conduct would be illegal under federal or state law, then the attorney could not advise the client to record the conversations.

In Arizona Ethics Opinion No. 99-11, the Committee held that it would be ethically permissible, and would not constitute misconduct, for a lawyer in private practice to direct a private investigator or "tester" to misrepresent his or her identity or purpose in contacting someone who is the subject of an investigation, but only if the misrepresentations are for for the purpose of gathering facts before filing suit. The Committee was heavily influenced by the fact that the use of "testers" to establish evidence of discrimination has become common practice, is often necessary, and has even been approved by the courts. The Committee concluded that, in light of that, it would be inconsistent with the intent of the Rules of Professional Conduct to interpret them to prohibit the practice.

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 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 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. 91-15, the Committee held that it was permissible for an Arizona attorney to file for Chapter 7 bankruptcy protection, both for the attorney and the attorney's professional corporation, and may seek to have discharged in those proceedings (1) any dischargeable malpractice claims brought by the attorney's clients, (2) any claims for contribution by the attorney's former partners or firm arising out of a pending malpractice case against the attorney, and (3) a claim of a landlord who is also the attorney's client.

8.4:500   Conduct Prejudicial to the Administration of Justice

AZ-ER 8.4(d), states that it is professional misconduct for an attorney to "engage in conduct that is prejudicial to the administration of justice . . . ." Quite obviously, conduct that is dishonest or deceitful taken in connection with pending litigation matters will implicate both AZ-ER 8.4(c) and 8.4(d).

Thus, in Matter of Fee, 182 Ariz. 597, 898 P.2d 975 (1995), an attorney was disciplined for failing to disclose to a judge conducting a settlement conference a separate agreement requiring the attorney's client to pay attorneys' fees in addition to those called for in the settlement agreement reached at the conference. Similarly, in Hmielewski v. Maricopa County, 192 Ariz. 1, 960 P.2d 47 (1997), the Court suggested that the failure to disclose to the Court a secret agreement between defense counsel and plaintiff's counsel to not object to plaintiff's evidence in exchange for an agreement by the plaintiff to dismiss the case before judgment was entered violated AZ-ER 8.4. On the other hand, in Arizona Ethics Opinion No. 94-13, the Committee on the Rules of Professional Conduct (the "Committee") ruled that an attorney is not required to disclose a prior representation of a court-appointed mental health professional expert witness in an unrelated matter in the past absent some showing that the former relationship would predispose the expert in some unusual way to favor the attorney's client. Similarly, the attorney need not withdraw from the present representation unless there is some unusual bias on the expert's part, or the attorney would be restricted in cross-examining the expert due to the prior representation. Id.

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).

In Matter of Hohn, 171 Ariz. 539, 832 P.2d 192 (1992), an attorney was disciplined for violating the predecessor to AZ-ER 8.4(d) by filing an improper lis pendens, and by sending a demand letter that was intended to circumvent the statutory requirements for securing a provisional remedy. In Hirschfeld v. Superior Court, 184 Ariz. 208, 908 P.2d 22 (App. 1995), the Court found that an attorney's personal confrontation with the mother in a custody dispute, after the Court had directed the attorney to cease and desist from such actions constituted "conduct prejudicial to the administration of justice." In Matter of Bemis, 189 Ariz. 119, 938 P.2d 1120 (1997), an attorney was found to have violated both AZ-ER 8.4(a) and (d) when he attempted to have ex parte meetings with two different judges about pending litigation, once by going to the judge's chambers and demanding to speak to the judge, and a second time by filing a pleading requesting that the Court contact him on an ex parte basis.

In Arizona Ethics Opinion No. 91-23, the Committee on the Rules of Professional Conduct (the "Committee") ruled that an attorney may not agree to settle a fee dispute with a client on the condition that the client not file a disciplinary complaint against the attorney.

In Arizona Ethics Opinion No. 91-07, the Committee determined that an attorney in the Child Support Services Division of the County Attorney's Office could properly use a form letter that alluded to potential criminal prosecution if the language of the letter did not run afoul of the State's extortion statute. 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 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 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. 87-05, the Committee held that it was proper for an attorney to advise a client who had been arrested for driving while intoxicated to refuse to undergo blood, urine or breath tests, but cautioned that the client should be fully advised of the consequences of refusing to undergo such tests and permitted to make an informed decision concerning whether or not to do so.

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 8.4(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 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.

8.4:600   Implying Ability to Influence Public Officials

AZ-ER 8.4(e) provides that it is professional misconduct for an attorney to "state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law . . ." There are no Arizona authorities that elaborate upon this specific provision. Former AZ-ER 7.1(a)(2) specified that a communication about a lawyer or the lawyer's services was false or misleading if it: "is likely to create an unjustified expectation about results the lawyer can achieve or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law . . ." That provision was effectively relocated to this Rule by the 2003 amendments to make clear that such a statement constitutes misconduct whether or not it is made in connection with the marketing of legal services.

8.4:700   Assisting Judge or Official in Violation of Duty

AZ-ER 8.4(f), makes it professional misconduct for a lawyer to "knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law." There was no counterpart to this provision in the former Code of Professional Responsibility.

The "applicable rules of judicial conduct" in Arizona is the Arizona Code of Judicial Conduct, Rule 81, RASC. Canon 3(B)(7) provides, in pertinent part, that, subject to certain defined exceptions, a "judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . ." In Matter of Bemis, 189 Ariz. 119, 938 P.2d 1120 (1997), an attorney was found to have violated both AZ-ER 8.4(a) and (d) when he attempted to have ex parte meetings with two different judges about pending litigation, once by going to the judge's chambers and demanding to speak to the judge, and a second time by filing a pleading requesting that the Court contact him on an ex parte basis.

In Arizona Ethics Opinion No. 87-02, the Committee on the Rules of Professional Conduct held that an attorney may not properly communicate on an ex parte basis with an administrative law judge concerning a case pending before that judge, regardless of whether the communication is initiated by the judge or by the attorney.

8.4:800   Discrimination in the Practice of Law

AZ-ER 8.4 does not address the issue of discrimination in the practice of law, and unlike the commentary to MR 8.4, neither does the Comment to AZ-ER 8.4.

8.4:900   Threatening Prosecution

AZ-ER 8.4 does not address the issue of threatening prosecution. Arizona courts have not addressed the issue in the context of civil litigation. However, Arizona courts have found permissible a prosecutor's threat to prosecute a criminal defendant diligently, seek his conviction and a "stiff sentence." State v. Lerch, 107 Ariz. 529, 490 P.2d 1(1971) (such statements would merely be reflection of what prosecutor is bound by duty to do). See also State v. Nicholson, 109 Ariz. 6, 503 P.2d 954 (1972) (in banc) (same result where prosecutor allegedly promised to prosecute five criminal charges diligently if defendant did not plead guilty to one charge). While the courts in these cases found such threats to not constitute reversible error in a criminal case, neither case addressed AZ-ER 8.4.

Attorney in the Child Support Services Division of the County Attorney's Office may use a form letter which alludes to potential criminal prosecution if the words of the letter do not violate the state's extortion statute, and they do not run afoul of a specific ethical proscription. Arizona Ethics Opinion No. 91-07.

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Arizona Rule

8.5:101      Model Rule Comparison

This Rule was not addressed by the 2003 amendments because it, and AZ-ER 5.5, were studied by the State Bar's Task Force on the Multijurisdictional Practice of Law. The recommendations of that Task Force, as modified by the State Bar Board of Governors, have not as yet been presented to the Arizona Supreme Court.

The "jurisdictional" provision of the Arizona Rules of Professional Conduct, AZ-ER 8.5, is markedly different from MR 8.5, which addresses the issues of whether lawyers may be subject to the disciplinary authorities of more than one jurisdiction, and the choice of which disciplinary law to apply in cases where the law of more than one jurisdiction may be involved. AZ-ER 8.5 simply provides that: "A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere." Arizona also adopted its own Comment accompanying AZ-ER 8.5, rather than the Comment which accompanied MR 8.5. AZ-ER 8.5

8.5:102      Model Code Comparison

There was no counterpart to AZ-ER 8.5 in the Code of Professional Responsibility.

8.5:200   Disciplinary Authority

AZ-ER 8.5 provides that a lawyer admitted to practice in Arizona remains subject to the disciplinary authority of Arizona, i.e., the Supreme Court of Arizona, the Disciplinary Commission and the State Bar of Arizona, even though that lawyer is engaged in practice elsewhere. [See discussion in Section 0.2:200, supra.] As the Comment to this aspect of the Rule explains:

In modern practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice. If their activity in another jurisdiction is substantial and continuous, it may constitute practice of law in that jurisdiction. See ER 5.5

Comment, AZ-ER 8.5, ˆ 1.

In Arizona Ethics Opinion No. 90-19, however, the Committee on the Rules of Professional Conduct (the "Committee") ruled that an attorney who was a member of both the Arizona Bar and the Bar of the Navajo Nation, and who was appointed by a court of the Navajo Nation to represent an indigent Navajo citizen in a criminal proceeding before that court was not subject to disciplinary action by the State Bar of Arizona, if the attorney complied with the ethical rules and court directives of the Navajo Nation, even if they conflicted with provisions of the Arizona Rules of Professional Conduct.

8.5:300   Choice of Law

As noted earlier, Arizona did not adopt the provisions of MR 8.5(b), which addresses the issue of which ethical rules to apply in situations where the rules of more than one jurisdiction may be applicable. Arizona deals with such "choice of law rules" solely in the Comment to AZ-ER 8.5. That Comment seems to contemplate that "conflict of laws" issues concerning which jurisdiction's ethical rules to apply may arise in two separate situations: (1) where a lawyer licensed to practice in Arizona, during the course of that lawyer's practice, engages in arguably unethical activity in another jurisdiction where the lawyer is not licensed; and (2) where a lawyer licensed to practice in Arizona is also licensed to practice in another jurisdiction.

With respect to the first situation, the Comment notes that the modern practice of law often requires lawyers to "act outside the territorial limits of the jurisdiction in which they are licensed to practice . . . ," but cautions that if such extraterritorial activity is "substantial and continuous, it may constitute practice of law in that jurisdiction." Subject to that caveat, the Comment then observes:

If the rules of professional conduct in the two jurisdictions differ, principles of conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than one jurisdiction.

Comment, AZ-ER 8.5, ˆ 2.

With respect to the latter situation, the Comment states:

Where the lawyer is licensed to practice law in two jurisdictions which impose conflicting obligations, applicable rules of choice of law may govern the situation. A related problem arises with respect to practice before a federal tribunal, where the general authority of the states to regulate the practice of law must be reconciled with such authority as federal tribunals may have to regulate practice before them.

Comment, AZ-ER 8.5, ˆ 3.

In Arizona Ethics Opinion No. 90-19, the Committee on the Rules of Professional Conduct (the "Committee") responded to an inquiry from a lawyer who was a member of both the State Bar of Arizona and the bar of the Navajo Nation, and who had been appointed by a court of the Navajo Nation to represent an indigent Navajo citizen in a criminal proceeding. The Committee noted that accepting and completing the responsibilities of the appointment would, in all likelihood, involve the impermissible representation of conflicting interests under the Arizona Rules of Professional Conduct, but the lawyer was under an obligation to accept the appointment under the terms of an order issued by the Navajo Nation Supreme Court and applicable to all members of the Navajo Nation Bar Association. The Committee determined that the question of whether the attorney should comply with the dictates of the Navajo Nation Supreme Court or the conflicting requirements of the Arizona Rules of Professional Conduct should be resolved through application of the principles of Section 6 of the Restatement (Second) of Conflicts of Law. Applying those principles, the Committee ruled that the attorney's conduct and course of action should be governed by the conflict of interest rules of the Navajo Nation, if and to the extent that they conflicted with the Arizona Rules of Professional Conduct, and would not be subject to disciplinary action by the State Bar of Arizona for doing so.

Similarly, in Arizona Ethics Opinion No. 99-13, the Committee concluded that it was permissible for an Arizona lawyer to allow a paralegal in the lawyer's employ, who was also a licensed tribal advocate, to represent clients in tribal court, if the court's rules permitted that, as the court's rules controlled. Such conduct would not violate the proscription on assisting the unauthorized practice of law, if the representation of clients by the paralegal was limited to tribal court matters.