n addition to adding the new
mechanism to ER 1. 15, the
Supreme Court also recently made other significant ethics and
practice-related rule amendments.
Post-conviction duties to disclose
for prosecutors and all lawyers
Following the lead of changes made
in 2008 to the ABA Model Rules
of Professional Conduct, the Court
on Nov. 14, 2013, added new sec-
tions to ER 3. 8, which deals with
the special responsibilities of a pros-
ecutor:
• New ER 3. 8(g) requires a pros-
ecutor to take certain steps to
disclose “[w]hen a prosecutor
knows of new, credible, and
material evidence creating a
reasonable likelihood that a
convicted defendant did not
commit an offense of which
the defendant was convicted.”
• New ER 3. 8(h) requires that a
prosecutor must take steps to
set aside the conviction of a
defendant in the prosecutor’s
jurisdiction when the prosecu-
tor “knows of clear and con-
vincing evidence establishing
that [the] defendant … was
convicted of an offense that the
defendant did not commit.”
• New ER 3. 8(i) provides that
a prosecutor who concludes in
good faith that information is
not subject to the other two
sections has not acted unethi-
cally, even if the prosecutor’s
conclusion is later found to be
wrong.
The Court also added a rule
that is not part of the Model Rules
but was based on a District of
Columbia Bar’s proposal. As of
November 2013, the District of
Columbia Court of Appeals had
not acted on the DC Bar’s proposal. Now Arizona has a version of
that proposal in its rules.
Although the new disclosure
www.azbar.org/AZAttorney
ER 1. 15 changes, effective Jan. 1, 2014
(a)-(d) [No change in text.]
(e) When in the course of representation a lawyer possesses property in which two or more persons (one of whom may be
the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer
shall promptly distribute all any portions of the property as to which the interests are not in dispute.there are no compet-
ing claims. Any other property shall be kept separate until one of the following occurs:
( 1) the parties reach an agreement on the distribution of the property;
( 2) a court order resolves the competing claims; or
( 3) distribution is allowed under section (f) below.
(f) Where the competing claims are between a client and a third party, the lawyer may provide written notice to the
third party of the lawyer’s intent to distribute the property to the client, as follows:
( 1) The notice shall be served on the third party in the manner provided under Rules 4. 1 or 4. 2 of the Arizona Rules
of Civil Procedure, and must inform the third party that the lawyer may distribute the property to the client
unless the third party initiates legal action and provides the lawyer with written notice of such action within 90
calendar days of the date of service of the lawyer’s notice.
( 2) If the lawyer does not receive such written notice from the third party within the 90-day period, and provided
that the disbursement is not prohibited by law or court order, the lawyer may distribute the funds to the client
after consulting with the client regarding the advantages and disadvantages of disbursement of the disputed
funds and obtaining the client’s informed consent to the distribution, confirmed in writing.
( 3) If the lawyer is notified in writing of an action filed within the 90-day period, the lawyer shall continue to hold
the property separate unless and until the parties reach an agreement on distribution of the property, or a court
resolves the matter.
( 4) Nothing in this rule is intended to alter a third party’s substantive rights.
Comment [2003 amendment]
[ 1]-[ 3] [No change in text.]
[ 4] [Effective December 1, 2004] The Rule also recognizes that third parties may have just claims against specific funds or
other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds recovered in a personal injury
action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference
by the client. In such cases, when the third-party claim has become a matured legal or equitable claim, and unless
distribution is otherwise allowed under this rule, the lawyer must refuse to surrender the property to the client until the
claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party,
but In addition to the procedures described in this rule, when there are substantial grounds for dispute as to the person
entitled to the funds, the lawyer may file an action to have a court resolve the dispute.
[ 5]-[ 7] [No change in text.]
Comment [2009 amendment]
[ 1]-[ 3] [No change in text.]
Comment [2014 amendment]
[ 1] New paragraph (f) allows a lawyer to distribute funds or property in the lawyer’s possession after providing notice to third
persons known to claim an interest. Notice under paragraph (f) must be sufficient to allow the third person to take appro-
priate action to protect its interests. Although there is no one form of notice that will be acceptable, the notice should
generally include at least the following: (a) a description of the funds or property in the lawyer’s possession; (b) the name
of the client claiming an interest in the funds and other information reasonably available to the lawyer that would allow
the third person to identify the claim or interest; (c) a mailing address, telephone number, and email address where the
third party can provide notice to the lawyer of the commencement of an action asserting an interest in the funds or prop-
erty; and (d) the proposed distribution of the funds or property. The notice shall be served in the manner provided under
Rules 4. 1 or 4. 2 of the Arizona Rules of Civil Procedure.
[ 2] Apart from their ethical obligations, lawyers may have legal obligations to safeguard third-party funds under applicable
case and statutory law. The notice provisions of paragraph (f) do not alter a lawyer’s legal obligations and duties to third
persons with respect to funds or property in the lawyer’s possession. A lawyer who proposes to distribute funds under
this paragraph should carefully evaluate the underlying law governing the lawyer’s obligations to safeguard funds in
which third persons claim an interest, which may expose the lawyer to a risk of civil or other liability even if the notice
provisions of paragraph (f) are satisfied.
[ 3] Before making any distribution of funds or property pursuant to paragraph (f), a lawyer should explain to the client that the
client may remain responsible to satisfy valid claims of third persons, and that the third person’s failure to commence an
action within the 90-day period of paragraph (f) will not by itself operate to waive, reduce or extinguish the third person’s
claim, if any, against the client or the funds or property received by the client. Before making any distribution under
paragraph (f), the lawyer must obtain the client’s informed consent, confirmed in writing, to the distribution.
I
