Can an Arizona lawyer cite an unpublished memorandum decision to a trial court for its persuasive value?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A lawyer asked two questions: (a) whether he could cite an Arizona Supreme Court or Court of Appeals memorandum decision to an Arizona trial court, other than to establish res judicata, collateral estoppel, or law of the case, if he made clear the decision was not precedent and was cited only for persuasive value; and (b) whether he could cite a Superior Court decision (sitting as a reviewing court in a special action or lower-court appeal) solely for its persuasive value.
On question (a), the committee concluded the conduct would be unethical. It noted it had addressed the same issue in Opinion No. 78-4 under the former Code of Professional Responsibility, and that the governing rule, now Rule 111(c) of the Rules of the Arizona Supreme Court and Rule 28(c) of the Arizona Rules of Civil Appellate Procedure, had not changed: memorandum decisions "shall not be regarded as precedent nor cited in any court" except for res judicata, collateral estoppel, or law of the case. The committee found ER 3.4(c) virtually the same as former DR 7-106(A) and ER 3.5(a) to impose obligations similar to former DR 7-106(C)(7), so it reached the same conclusion as in Opinion No. 78-4: citing such a memorandum decision would disregard a Supreme Court rule and would appear to seek to influence a judge by means prohibited by law.
On question (b), the committee concluded the conduct would not be unethical. It found no prohibition on the face of Rule 111(c) or Rule 28(c) against citing a Superior Court decision in a special action or lower-court appeal. Although Rule 9 of the Rules of Procedure for Special Actions makes the civil appellate rules applicable to special actions, the committee read Rule 28, by its title and terms, as intended to apply only to the Supreme Court and Court of Appeals and not to a single-judge Superior Court decision.
The opinion concluded that the conduct in question (a) would be unethical, but the conduct in question (b) would not.
Currency note
This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer cite an Arizona memorandum decision to a trial court if labeled persuasive only?
A: The opinion concluded no; court rules bar citing a memorandum decision except for res judicata, collateral estoppel, or law of the case, so doing so would disregard a Supreme Court rule and would be unethical under ER 3.4(c) and ER 3.5(a).
Q: Is it different to cite a Superior Court decision in a special action or lower-court appeal?
A: Yes; the committee concluded citing such a Superior Court decision for persuasive value is not unethical, because Rules 28(c) and 111(c) were not intended to reach single-judge Superior Court decisions.
Q: Why does citing a barred memorandum decision raise an ethics issue at all?
A: The opinion reasoned that it would knowingly disregard a tribunal's rule (ER 3.4(c)) and would appear to seek to influence a judge by means prohibited by law (ER 3.5(a)).
Background and rules framework
The opinion applied ER 3.4(c) (Model Rule 3.4), which bars knowingly disobeying an obligation under the rules of a tribunal except by an open, good-faith refusal, and ER 3.5(a) (Model Rule 3.5), which bars seeking to influence a judge by means prohibited by law. It read those rules against Rule 111(c) of the Rules of the Arizona Supreme Court and Rule 28(c) of the Arizona Rules of Civil Appellate Procedure, which bar treating memorandum decisions as precedent.
Citations and references
Rules of Professional Conduct:
- ER 3.4(c) / Model Rule 3.4 (fairness; disobeying a tribunal's rules)
- ER 3.5(a) / Model Rule 3.5 (impartiality; influencing a judge by prohibited means)
Rules of court:
- Rule 111(c), Rules of the Arizona Supreme Court (memorandum decisions not precedent)
- Rule 28(c), Arizona Rules of Civil Appellate Procedure (same)
- Rule 9, Rules of Procedure for Special Actions
Other opinions cited:
- Arizona Opinion No. 78-4: prior analysis of the same question under the Code of Professional Responsibility
See also
- AZ Ethics Op. 87-02: Ex Parte Communication
- AZ Ethics Op. 87-10: Lawyer as Witness
- AZ Ethics Op. 87-16: Contingent Fee Base
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
7/1987
Attorney citing to a trial court a memorandum decision of the Arizona Supreme Court of Arizona Court of Appeals that is not precedent, but for persuasive value only.
FACTS AND QUESTIONS
Inquiring attorney seeks an opinion as to the ethical propriety of
a) Citing to a trial court in Arizona a memorandum decision of the Arizona Supreme Court or Arizona Court of Appeals, other than for the purpose of establishing res judicata, collateral estoppel or the law of the case, if he makes clear in his brief and argument that the memorandum decision is not precedent and is cited for its persuasive value only; and
b) Citing a decision of the Superior Court in his jurisdiction (sitting as a reviewing court in a special action or a lower court appeal), again solely and expressly for its persuasive value.
ETHICAL RULES INVOLVED
ER 3.4. Fairness to Opposing Pasty and Counsel
A lawyer shall not:
c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
ER 3.5. Impartiality and Decorum of the Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or an official of a tribunal by means prohibited by law;
OPINION
In our Opinion No. 78-4, we addressed the issue posed by this inquiry. The rule under discussion in that opinion has now become Rule 111(c) of the Rules of the Arizona Supreme Court ["Rule 111(c)"] and Rule 28(c) of the Arizona Rules ofCivil Appellate Procedure ["Rule 28(c)”]. There has been no change in the language of the rule, however. The current rules provide:
Memoranda decisions shall not be regarded as precedent nor cited in any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case.
Effective February 1, 1985, the Supreme Court of Arizona discarded the Code of Professional Responsibility, under which Opinion No. 78-4 was decided, and adopted the Rules of professional Conduct ("Rules"). Although the adoption of the Rules effected substantive changes in many areas of ethical responsibility of lawyers, in our opinion no substantive change in the area under inquiry here was effected by adoption of the Rules.
For purposes of this discussion, ER 3.4(c) is virtually the same as DR 7-106(A) of the Code of Professional Responsibility. For purposes of this discussion, ER 3.5(a) imposes similar ethical obligations as DR 7-106(C) (7). The committee therefore reaches the same conclusion as to Question a) as it did in Opinion No. 78-4. Insofar as the citation contemplated would be of a “memorandum decision" as defined in Rules 111(c) and 28(c), such a citation would disregard a rule of the Supreme Court, would appear to be seeking to influence a judge by means prohibited by law, and would therefore be unethical.
There does not, on the face of either Rule 28(c) or Rule 111(c), appear to be any prohibition against citing to another court a decision of the Superior Court in a special action or in a lower court appeal. There does not appear to be any rule in the Superior Court Rules of Appellate Procedure that would make either Rule 111(c), Roles of the Arizona Supreme court, or Rule 28(c), Arizona Rules of Civil Appellate Procedure, applicable to opinions of the Superior Court sitting on a lower court appeal or which would prohibit such citation. On the other hand, Rule 9 of the Rules of Procedure for Special Actions make the Arizona Rules of Civil Appellate Procedure applicable to special actions. Therefore, perhaps the argument could be made that Rule 28 (c) would prohibit the citation of a memorandum decision of the Superior Court deciding a special action. The committee is of the opinion, however, that Rule 28, by its title, indicates that it was not intended to be applicable to any court other than the Supreme Court or Courts of Appeals. Moreover, the terms of the Rule indicate inapplicability to a situation where only one judge, such as a Superior Court judge, is rendering a decision. The committee therefore finds no ethical impropriety in the citation to a decision of the Superior Court regarding the disposition of a special action or a lower court appeal.
We accordingly conclude that the proposed conduct set forth in question a) would be unethical, but that the proposed conduct set forth in question b) would not be unethical.
© State Bar of Arizona 1987
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