Did Arizona Opinion 94-12 require reporting a former lawyer's misconduct when the report would reveal the current client's confidential information?

Plain-English summary

A criminal-defense client asked counsel not to report a former lawyer to the State Bar, fearing retaliation. The committee assumed, without independently deciding, that the alleged misconduct otherwise met ER 8.3(a)'s reporting threshold. The lawyer had learned the underlying facts from the client during the representation, and the client expressly refused consent to disclosure.

Under ER 8.3(c), the reporting rule did not require disclosure of information protected by ER 1.6. The committee held that the facts could not be reported on these circumstances. It emphasized that when confidentiality was not implicated, a client could not dictate whether a lawyer fulfilled an otherwise applicable reporting duty.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the committee decide whether the former lawyer actually committed reportable misconduct?

A: No. It assumed ER 8.3(a)'s elements for the purpose of answering the confidentiality question.

Q: Why could the current lawyer not file the report?

A: The underlying facts were representation-related information learned from the client, who refused consent; ER 8.3(c) preserved ER 1.6 confidentiality.

Q: Could a client's preference alone stop a report where no confidence was involved?

A: No. The opinion said an otherwise applicable reporting duty could not be controlled solely by the client's wishes.

Background and rules framework

The opinion applied Arizona ER 8.3(a)'s assumed reporting obligation and ER 8.3(c)'s exception for information protected by ER 1.6. A footnote also mentioned ER 1.8(b)'s possible restriction on using client information to the client's disadvantage.

Citations and references

Rules of Professional Conduct:

• AZ ER 8.3(a), (c): misconduct reports and protected information
• AZ ER 1.6: representation-related confidentiality
• AZ ER 1.8(b): possible disadvantageous use of client information

Cases:

• In Re James H. Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988): client direction without a confidentiality basis

Other opinions cited:

• Arizona Opinion 90-13: ER 8.3 reporting scope

See also

• AZ Ethics Op. 94-11: Credit Reporting of Client Fees

Source

• Landing page: https://www.azbar.org/for-legal-professionals/ethics/ethics-opinions/?V=Opinions&OpinionId=675
• Official opinion API: https://api.azbar.org/EthicsRules/Opinion/?Id=675

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FACTS^[1]

The inquiring attorney represents a client in a criminal case. He believes that the client's former lawyer violated an ethics rule, triggering his duty to report the former lawyer to the State Bar. However, the client specifically has requested that he not report the former lawyer. The client has told the inquiring attorney that it is his genuine belief that the former lawyer is sufficiently "well-connected" that the client could conceivably sustain severe personal injuries while in the custody of the Arizona Department of Corrections. The inquiring attorney informs the Committee that he has no personal knowledge to corroborate the client's fears.

QUESTION PRESENTED

May the inquiring attorney refrain from or delay reporting the client's former lawyer to the State Bar, if the client specifically requests that he not file the complaint?

ETHICS RULES INVOLVED

ER 1.6 and ER 8.3.

OPINION

For the purposes of responding to this inquiry, the Committee assumes that the elements set forth in ER 8.3(a) exist and that, therefore, the inquiring attorney has a duty to report the client's former lawyer to the appropriate professional authority unless the exception in subsection (c) applies.^[2] For a general discussion of the scope of ER 8.3(a) and (c), we recommend that the reader consult our Opinion 90-13 (July 18, 1990).

The exception set forth in ER 8.3(c), prohibits the filing of a report with the State Bar if the information concerning the attorney misconduct is protected by ER 1.6. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. The rule applies in situations other than those where evidence is sought from the lawyer through compulsion of law. (See Comment to ER 1.6). Thus, it is clear that ER 1.6 is applicable under the circumstances. The underlying facts upon which the inquiring attorney based his determination of unethical conduct were obtained from his client during the course of the representation. ER 1.6 prohibits the disclosure of such information without client consent. The client has not given consent, in fact, he specifically has asked his counsel, the inquiring attorney, to refrain from revealing the information.^[3] Since this situation does not involve an exception to the confidentiality rule, ER 1.6 trumps ER 8.3 and the facts cannot be disclosed. We note, however, that where confidentiality concerns are not implicated, a lawyer's duty to report misconduct under ER 8.3 cannot be dictated by the client's wishes. See In Re James H. Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988) (client's direction to her lawyer to not file a disciplinary grievance is no defense to a charge that the attorney failed to report another lawyer's misconduct). See also Geoffrey Hazard, Jr., and W. William Hodes, The Law of Lawyering (2dEd.), at pp. 942-944.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.

©State Bar of Arizona 1994