Opinions Issued by the Committee

Formal Ethics Opinions  Date Published
EO-19-0006: Though Fearnow v. Ridenour, Swenson, Cleer & Evans, 213 Ariz. 24 (2006) made it clear that ER 5.6 does not categorically prohibit all agreements imposing financial disincentives on a departing lawyer who continues to practice in competition with their previous firm, imposing a per-client fee on a departing associate directly interferes with client choice and is prohibited. This Opinion supersedes State Bar of Arizona Ethics Opinion 09-01.  11/04/2020
EO-19-0009: Lawyers must retain sufficient information regarding the work they have done on a matter to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they keep, how they store and organize those materials, and what they do with records at the end of a representation.  11/04/2020
EO-20-0001:Lawyer-client relationships sometimes end earlier than the lawyer and client anticipated at the start of the representation. A lawyer’s withdrawal from representation is not always agreed upon by the client and may also be under touchy circumstances, such as dishonesty of the client or non-payment of fees owed to the lawyer. Further, a client may fire a lawyer at any time, for good or bad reasons. A lawyer faced with such situations must uphold the lawyer’s ethical responsibilities to the client despite that the representation is at, near, or has reached an end. Client confidentiality must be protected unless the ethical rules specifically allow disclosure, and any disclosures must be made as narrowly as possible. If, in a court setting, the tribunal does not allow the withdrawal, the lawyer can seek relief from a higher court, but must protect the client’s interests and competently represent the client until and unless an order for withdrawal is granted. A withdrawing lawyer must advise the client and new counsel of pending court dates, status of the case, and anything else necessary and appropriate for the smooth transfer of the representation. Any fees charged to the client for withdrawal-related work must be reasonable. Of course, the client is entitled to the client file consistent with Ethics Opinion No. EO-19-0009, regardless of the circumstances for the withdrawal.  12/15/2020
EO-19-0004/0005/0007: Rule 1.15(f) of the Arizona Rules of Professional Conduct (“ER 1.15(f)” or “the Rule”) provides an ethical “safe harbor” to lawyers who distribute disputed property—including funds—in the lawyer’s possession after providing notice to third persons known to claim an interest in the property. See ER 1.15 cmt. 1 (2014 amendment). The questions before the Attorney Ethics Advisory Committee (the “Committee”) are: what constitutes sufficient notice under ER 1.15(f) where the lawyer is in possession of property that is the subject of a disputed health care provider lien asserted under A.R.S. §§ 33-931 through 33-936, and what obligations does the lawyer have to respond to requests for information before coming into possession of the property?  12/31/2020
EO-20-0007: This opinion reviews the ethical dilemma posed when an attorney learns that, due to a former client’s apparent perjury in a civil proceeding, the attorney has offered false material evidence to a tribunal. The Committee concludes that the Arizona Rules of Professional Conduct, under the facts of this case, provide that the attorney’s duty of candor to the tribunal overcomes the ethical duty of preserving the former client’s confidences and that the attorney must take reasonable remedial measures effective to undo the effect of the false evidence with respect to the affected tribunal. 05/19/2021
EO-19-0003: When a lawyer engages a social worker to provide services in connection with a representation, and when such services are or may be subject to the mandatory reporting requirement of Arizona Revised Statute 13-3620, the lawyer must advise the client that the social worker may be obligated by law to report physical injury, abuse, or neglect of a minor when the lawyer is not otherwise required to do so. It is the decision of the client whether to utilize the services of the social worker.  08/02/2021   
EO-20-0003: With the recent elimination of fee-sharing prohibition, a fee-financing arrangement in which a lender will retain a portion of the lawyer’s fees is permissible. To pass along the cost of the fees retained by the lender to the client, the lawyer must disclose the charge’s nature and details. The lawyer must also reveal alternative payment options and the merits and drawbacks of those alternatives. At all times, the lawyer’s fee must remain reasonable. Provided the lawyer obtains the client’s informed consent, the lawyer may disclose information necessary to facilitate a lender’s fee-financing arrangement. The lawyer must inform the client of the full range of consequences presented by the disclosure of client-related information to a third party, including the possible waiver of attorney-client privilege if applicable. The lawyer has a continuing obligation to ensure that information disclosed to a lender is not misused or disclosed to unauthorized individuals. Fee-financing arrangements raise several potential conflicts of interest. The lawyer must acquire the client’s informed consent, confirmed in writing, to waive these conflicts if a significant risk of them occurring is present. In the consumer bankruptcy context, the lawyer’s duty of candor requires disclosure of all relevant details concerning a fee-financing arrangement to the bankruptcy court. 08/25/2021 
EO-20-0008: A lawyer who authors and sends an electronic document to someone other than the client on whose behalf the document was drafted, or other privileged persons, is responsible, under ER 1.6, for first scrubbing the document of confidential metadata that may be contained within the electronic file using standard software applications for doing so.  A lawyer who receives an electronic document or other type of electronic file from another lawyer may ethically use the software applications within which the file was created and saved to retrieve and review embedded metadata unless the lawyer knows or reasonably should know that the metadata was included inadvertently—in which case the receiving lawyer should follow the process in ER 4.4(b). Metadata that contains material information that the lawyer knows or reasonably should know is confidential or privileged should be assumed to be inadvertently disclosed. “Mining” for metadata, meaning searching for metadata using software applications that are designed to retrieve metadata despite a sending lawyer’s reasonable efforts to scrub it, violates ER 4.4(a). This opinion approves in part and disapproves in part State Bar of Arizona Opinion 07-03. A lawyer may not, without the prior informed consent of the recipient, ethically embed in an email to potential, current, or future clients, or other lawyers, hidden email-tracking software, also known as a web beacon, pixel tag, clear GIF or invisible GIF. Use of such a device violates ER 4.4.  05/03/2022
EO-19-0010: The rise of blogs and social media platforms on the internet enable a disgruntled client to spread information – and misinformation – about their former lawyer to a wider and more diverse audience than ever before, especially if readers choose to further disseminate the information. Most online reviews are also more or less permanent; even if they become less prominent over time, they may continue to show up in response to targeted searches for information about the lawyer. A lawyer who becomes aware that a former client has posted unflattering comments or reviews about the lawyer will therefore – understandably – want to respond 12/06/2022
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