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This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
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Last Post 21 May 2018 04:43 PM by  State Bar of Arizona
R-18-0009 Petition to Amend ER 1.2, Rule 42, Ariz. R. Sup. Ct.
 4 Replies
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Patricia A. Sallen
New Member
Posts:3 New Member

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10 Jan 2018 06:06 AM
    Petitioner’s Name: Patricia A. Sallen
    Committee Name, if applicable: Not applicable
    Mailing Address: 3104 E. Camelback Road #541, Phoenix, 85016
    Phone Number: 480-290-4841
    E-mail Address: psallen@ethicsatlaw.com
    Bar Number: 012338

    Would amend ER 1.2, Rule 42, Ariz. R. Sup. Ct. to allow lawyers to ethically advise and assist clients in matters that are expressly legal under Arizona law but that may violate federal law.

    Filed January 10, 2018

    Comments must be submitted on or before May 21, 2018.

    ORDERED: Petition to Amend Rule 42, Ethical Rule 1.2, Rules of the Supreme Court = DENIED.
    Attachments
    George Riemer
    New Member
    Posts:1 New Member

    --
    17 May 2018 09:48 AM
    This comment is submitted solely on my own behalf as an active member of the State Bar of Arizona.

    The Court declined to approve this proposed rule change in August 2016 (R-16-0027). I acknowledge that as a member of the Attorney Regulation Advisory Committee I voted in favor of the committee’s support of that petition dated May 20, 2016. When the present petition was considered by the committee, I was the only committee member that voted not to support it.

    The present petition resubmits the proposed rule change so as to allow Arizona lawyers to “counsel or assist a client regarding conduct expressly permitted by Arizona law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.”

    The rationale supporting the current rule change petition has two parts. The first part is based on the federal government recently rescinding a safe-harbor position on marijuana enforcement, “thereby raising the specter of federal prosecution for acting in compliance with a state law.” While this rationale was accurate at the time the petition was submitted, the federal government’s position on the enforcement of existing federal law concerning marijuana is extremely fluid at the time of this writing. I believe it is quite theoretical that any Arizona lawyer advising a client in good faith concerning compliance with Arizona’s medical marijuana law will face federal sanction for doing so. It appears to me that the proposed rule change is a solution in search of a concrete problem.

    The second rationale for the proposed rule change is that the current rule does not clearly protect Arizona lawyers from facing disciplinary charges for counseling or assisting a client concerning compliance with state law that might conflict with federal law. In my view the current rule provides as much protection from unwarranted disciplinary charges/sanctions as the proposed rule. Nothing prevents an Arizona lawyer from arguing under the current rule that he or she counseled or assisted a client regarding conduct that was expressly permitted by Arizona law such that the lawyer did not “counsel a client to engage, or assist a client, in conduct that the lawyer knew was criminal or fraudulent.”

    Beyond the foregoing, Article VI, Clause 2 of the U.S. Constitution, provides, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Arizona lawyers take an oath to support both the constitutions and laws of the United States and the State of Arizona. The proposed rule change could lead Arizona lawyers to perceive they can ethically counsel or assist a client regarding conduct expressly prohibited by federal law because the conduct is expressly permitted by Arizona law.

    George A. Riemer
    623-238-5039
    23206 N Pedregosa Dr
    Sun City West, AZ, 85375-2306
    State Bar of Arizona Member No. 017034
    Katherine Novak
    New Member
    Posts:6 New Member

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    21 May 2018 09:34 AM
    Katherine Novak
    knovak@courts.az.gov
    602-452-3415

    Attached is the Comment of the Attorney Regulation Advisory Committee.
    Attachments
    Joseph Domanico
    New Member
    Posts:17 New Member

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    21 May 2018 03:44 PM
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 00032000)

    MARK FAULL
    CHIEF DEPUTY
    301 WEST JEFFERSON STREET, SUITE 800
    PHOENIX, ARIZONA 85003
    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    domanico@mcao.maricopa.gov

    MARICOPA COUNTY ATTORNEY’S RESPONSE TO PETITION TO AMEND ETHICAL RULE 1.2, RULE 42, ARIZONA RULES OF THE SUPREME COURT
    Attachments
    State Bar of Arizona
    New Member
    Posts:50 New Member

    --
    21 May 2018 04:43 PM
    Lisa M. Panahi, Bar No. 023421
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, AZ 85016-6288
    (602) 340-7236
    Patricia.seguin@staff.azbar.org

    The State Bar of Arizona submits the attached comment to this Petition.
    Attachments
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