Does an Arizona lawyer have to give a client's family and friends updates about the client's case?

Plain-English summary

A court-appointed criminal defense lawyer's indigent client gave permission for the lawyer to share case information with the client's family and friends, who were repeatedly contacting the lawyer for updates about the upcoming trial. The lawyer wanted to focus on trial preparation. The committee, re-issuing a 2007 State Bar opinion without changing its conclusions, addressed what duty (if any) counsel owes to a client's family or friends to communicate case information. It assumed a competent adult client and noted that a client with diminished capacity raises separate ER 1.14 considerations.

The committee first addressed confidentiality. Under ER 1.6, a lawyer may not disclose information about the representation without the client's informed consent or implied authorization, and ER 1.8(f) confirms that even a family member who pays the lawyer is not entitled to protected information. Here, because the client consented, ER 1.6 did not bar the lawyer from speaking with the family. But consent does not create an obligation. ER 1.4's communication duties (keeping the client reasonably informed and promptly complying with reasonable requests for information) run, by their terms and comment, to the client, not to third parties, so nothing in ER 1.4 requires a lawyer to communicate with a client's family or friends.

The committee added two qualifications. Under ER 1.2, the client sets the objectives but the lawyer controls the means, so even when a client asks the lawyer to relay information, the lawyer need not comply if doing so would not further (or would harm) the client's objectives. Citing Arizona Ethics Op. 86-2, the committee noted that where a family's interests conflict with the client's (there, a juvenile defendant whose parents' interests were adverse), the lawyer has no duty to communicate and any disclosure should be limited. On the other hand, the ER 1.1 duty of competence can sometimes call for family contact: maintaining a good relationship with a defendant's family can improve the representation, and family members are often a key source of mitigating evidence about the defendant's history and characteristics at sentencing. The committee framed this as a balancing test, weighing the benefits of the communication against any interference or harm.

In practice

The opinion holds that, under the Arizona rules, an appointed or retained lawyer is not ethically obligated to field a client's family's or friends' requests for case information, even when the client consents, and the lawyer may decline communications that do not serve the client. At the same time, the opinion frames competent representation as sometimes favoring family contact (for example, to develop sentencing mitigation), making it a case-specific balance rather than a fixed rule. Confirm the current ER 1.4, ER 1.6, and ER 1.1 text before relying on these specifics.

Common questions

Q: Must a lawyer keep a client's family updated on the case?

A: No. The opinion concluded there is no per se duty; ER 1.4's communication obligations run to the client, not to the client's family or friends.

Q: If the client consents, can the lawyer share information with family?

A: Yes. The opinion concluded that with the client's informed consent (or where disclosure is impliedly authorized to carry out the representation), ER 1.6 does not bar the lawyer from communicating with the client's family.

Q: Does the lawyer have to relay information just because the client asks?

A: Not necessarily. The opinion concluded that under ER 1.2 the lawyer controls the means of representation, so the lawyer need not make a requested communication that does not further, or that would harm, the client's objectives.

Q: Can a paying family member get information about the case?

A: Not as of right. The opinion concluded that ER 1.8(f) bars giving a third-party payer information that ER 1.6 protects, absent the client's consent.

Background and rules framework

The opinion interprets Arizona ER 1.6 (confidentiality; Model Rule 1.6), ER 1.4 (communication; Model Rule 1.4), ER 1.2 (allocation of authority between client and lawyer; Model Rule 1.2), ER 1.1 (competence; Model Rule 1.1), and ER 1.8(f) (third-party compensation; Model Rule 1.8). It assumes a competent adult client and flags ER 1.14 (clients with diminished capacity; Model Rule 1.14) as governing the separate situation of an impaired client.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / Arizona ER 1.6 (confidentiality of information)
• MR 1.4 / Arizona ER 1.4 (communication; duties run to the client)
• MR 1.2 / Arizona ER 1.2 (client sets objectives; lawyer controls means)
• MR 1.1 / Arizona ER 1.1 (competence)
• MR 1.8 / Arizona ER 1.8(f) (third-party compensation)

Statutes:

• 18 U.S.C. section 3553(a) (sentencing factors, including the defendant's history and characteristics)

Other opinions cited:

• State Bar of Arizona Ethics Op. 86-2: no duty to communicate with a juvenile defendant's parents whose interests conflicted
• State Bar of Arizona Ethics Op. 07-01

See also

• ABA Formal Op. 500: Language Access With Clients
• ABA Formal Op. 07-448: Appointed Counsel, Refused Client

Source

• Landing page: https://www.azcourts.gov/cld/Attorney-Ethics-Advisory-Committee/Opinions-Issued-by-the-Committee
• Original PDF: https://www.azcourts.gov/Portals/0/26/SC%20PACKET%20FOR%20EO-20-0010%201%205.pdf

Original opinion text

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

SUPREME COURT OF ARIZONA
ETHICS ADVISORY COMMITTEE
ETHICS OPINION FILE NO. EO–20-0010

This opinion was originally issued by t h e State Bar of Arizona’s Rules of Professional Conduct Committee in 2007. The Arizona Supreme Court’s Ethics Advisory Committee (“EAC”) has updated the opinion, but its conclusions remain unchanged.

This opinion reviews t h e lawyer’s ethical duty to communicate with a client’s friends or family and t h e ethical restraints on that communication. This opinion concludes that the Arizona Rules of Professional Conduct, under the facts presented, do not impose a per se duty on a lawyer to provide information about a client’s case or upcoming trial to the client’s family or friends. The lawyer may provide this information if t h e client gives informed consent or consent is impliedly authorized to carry out t h e representation. In some circumstances, the lawyer’s ethical duty to provide competent representation may require such contact. This opinion assumes t h e client is a competent adult.1

FACTS:

The court has appointed the lawyer to represent an indigent client in a criminal case. The client’s family and friends contact the lawyer for information concerning t h e client’s upcoming trial. The client has given t h e lawyer permission to convey information to t he family and friends. The lawyer wants to devote his or her time preparing for trial rather than responding to the numerous requests for information.

QUESTION PRESENTED:

What duty, if any, does counsel owe to t h e client’s family or friends to communicate information to them relating to t h e client’s case or trial?

RELEVANT ETHICAL RULES:
ER 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires t he legal knowledge, skill, thoroughness and preparation

1 In representing a client with diminished capacity, the lawyer should consult ER 1.14 which m a y allow or require the

lawyer to communicate with others to protect the client’s interests.
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reasonably necessary for t h e representation.

ER 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning t he objectives of representation and, as required by ER 1.4, shall consult with t he client as to t h e means by which they are to be pursued. A lawyer may take such action on behalf of t h e client as is impliedly authorized to carry out t h e representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, t h e lawyer shall abide by t h e client’s decision, after consultation with t he lawyer, as to a plea to be entered, whether to waive jury trial and whether t h e client will testify.
. . .

ER 1.4 Communication

(a) A lawyer shall:
(1) promptly inform t h e client of any decision or circumstance with respect to which t he client’s informed consent, as defined in ER 1.0(e), is required by these Rules;
(2) reasonably consult with t he client about t h e means by which the client’s objectives are to be accomplished;
(3) keep t h e client reasonably informed about t h e status of t h e matter;
(4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when t he lawyer knows that t he client expects assistance not permitted by t h e Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to t h e extent reasonably necessary to permit t h e client to make informed decisions regarding t h e representation.
(c) In a criminal case, a lawyer shall promptly inform a client of all proffered plea agreements.
...

ER 1.6 Confidentiality

(a) A lawyer shall not reveal information relating to t h e representation of a client unless t h e client gives informed consent 2, t h e disclosure if impliedly 2 Informed Consent “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to 2

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authorized in order to carry out t h e representation or t h e disclosure is permitted or required by paragraphs (b), (c), or (d), or ER 3.3(a)(3).

ER 1.8 Conflict of Interest: Current Clients: Specific Rules
...
(f) A lawyer shall not accept compensation for representing a client from one other than t h e client unless:
...
(3) information relating to representation of a client is protected as required by ER 1.6.

RELEVANT ARIZONA ETHICS OPINIONS:

State Bar of Ariz. Ethics Op. Nos.: 86-2 and 07-01

OPINION:

If a client does not authorize the lawyer to speak with family or friends, the lawyer may not disclose information about t h e case unless t h e disclosure is impliedly authorized to carry out t h e representation. ER 1.6 sets forth a lawyer’s duties regarding revealing information relating to t h e representation of a client. Except for t h e listed exceptions to t h e rule, which generally refer to preventing future criminal conduct and mitigating t h e effect of criminal conduct committed with t h e use of t h e lawyer’s services, a lawyer may not disclose such information unless t h e client gives informed consent, or t h e disclosure is impliedly authorized in order to carry out t h e representation. ER 1.8 makes clear that even in circumstances where a friend or family member is paying t h e lawyer, t h e lawyer may not provide t h e payor information about t he representation that is prohibited by ER 1.6. In t h e fact pattern presented, ER 1.6 does not prohibit t h e lawyer from communicating with the client’s family as t h e client has consented to such release of information.

Even with client consent, a lawyer does not have a per se ethical duty to respond to requests for information from a client’s family and friends. ER 1.4(a) sets forth a lawyer’s duties regarding communication. Subsections (a)(3) and (a)(4) are most relevant to this issue. Subsection (a)(3) requires t h e lawyer to keep the client reasonably informed of t h e status of t h e case. It is limited, by its terms, to communications with t h e client.

the proposed course of conduct.” ER 1.0(e).
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Subsection (a)(4) of this rule, however, is not limited by its express terms to communication with the client. It provides that the “lawyer shall . . . (4) promptly comply with reasonable requests for information.” ER 1.4(a)(4). Comment [4] to ER 1.4 discusses this subsection and states that “when a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with t h e request… A lawyer should promptly respond to or acknowledge client communications.” (Emphasis added.) This supporting language implies that subsection (a)(4) also is limited to communication with a client. Nothing in ER 1.4 imposes a duty to communicate with a client’s family or friends.

Even when t h e client tells t h e lawyer to communicate certain information to family and friends, t h e lawyer is not necessarily obligated to comply with the request. ER 1.2 provides that a lawyer shall abide by t h e client’s decisions concerning t h e objectives of t h e representation. It is t h e lawyer, however, who determines t he means by which these objectives shall be accomplished. Thus, if a lawyer believes that a client’s request to t he lawyer to communicate information to others does not further the client’s objective, the communication need not be made. If t h e communication would harm the client, the lawyer should not comply with the request.

In Ariz. Ethics Op. 86-2, t h e committee addressed a court-appointed criminal defense lawyer’s duty to communicate with a juvenile defendant’s parents. In that case, t h e court found that the parents’ interests were adverse to or in conflict with t h e juvenile’s interests and appointed independent counsel for t h e juvenile. Similarly to this fact pattern, t he defendant had asked his lawyer to communicate with his parents. That opinion found that the lawyer had no duty to communicate with t h e juvenile defendant’s parents. Moreover, any disclosure to t h e parents should be limited, presumably because of t h e adverse relationship between the juvenile and his parents.

A lawyer, however, has a duty to competently represent a client. ER 1.1. In certain circumstances, this duty of competent representation may require contact with t h e client’s family and friends. For example, communication with a client’s family, at t h e request of t h e client, may enhance the lawyer-client relationship, and t h us improve the quality of representation provided to t he defendant. In a criminal case, if a defendant is convicted, t h e defense lawyer has an obligation to explore and present relevant mitigating factors at sentencing, including helpful evidence about “the history and characteristics of t h e defendant.” See 18 U.S.C. § 3553(a). Family members and friends can often provide a wealth of information about these mitigating factors. Alienating a family early on in a case may hamper a lawyer’s 4

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later efforts to effectively represent t h e client at sentencing. It is a balancing test. If t h e client wants the lawyer to inform his family about a hearing or trial, t h e lawyer should consider t h e request, weighing t he benefits to t h e communication against any interference, or harm, caused by t h e communication.

CONCLUSION:

A lawyer has a duty to communicate with his/her client and to promptly respond to requests for information. That duty, however, does not automatically extend to a client’s family members or friends. In some circumstances, such communication may be required to competently represent the client, and the lawyer should balance t h e benefits to be gained by t h e communication against any detriments. With t h e client’s informed consent, a lawyer may communicate this information to t h e client’s family or friends. A lawyer may also communicate information to a client’s family and friends if t h e lawyer determinates that he/she is impliedly authorized to release this information in order to carry out the representation.

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