Arizona Attorney - January 2014

provisions of ER 3. 8 apply to prosecutors, new
ER 3. 10 extends the duty of post-conviction
disclosure to all lawyers.

“Rectifying the conviction and preventing
the incarceration of an innocent person are
core values of the judicial system and matters
of vital concern to the legal profession,” the
comment to the new ER 3. 10 states. “Because
of the importance of these principles, this Rule
applies to all members of the Bar except pros-
ecutors, whose special duties with respect to
disclosure of new, credible, and material excul-
patory evidence after conviction are set forth
in ER 3. 8(g), (h), and (i).”
New ER 3. 10(a) provides, in part:
When a lawyer knows of credible and
material evidence that creates a reasonable
likelihood that a convicted defendant
did not commit an offense of which the
defendant was convicted, the lawyer shall
disclose that evidence to the court in
which the defendant was convicted and
the corresponding prosecutorial authority.

As with ER 8. 3, which deals with reporting
another lawyer’s unethical conduct to the
State Bar, new ER 3. 10(b) says lawyers do not
need to disclose information protected by ER
1. 6 (confidentiality) or other law.

As with new ER 3. 8(i), new ER 3. 10(c) provides that a lawyer who in good faith decides that information is not subject to disclosure will not violate the rule, even if that conclusion is later found to be wrong.

Finally, new ER 3. 10(d) says a lawyer
doesn’t have to disclose if the lawyer knows
that appropriate governmental authorities or
the convicted defendant already possess the
information. ER 1.0(f) defines “knows” as
“actual knowledge of the fact in question.”
Actual knowledge may be inferred from the
circumstances. 1

The ER 3. 8 and ER 3. 10 amendments
took effect January 1.
Advertising
At its August 2013 rules session, the Court
changed a few words in ER 7. 2 that should
make lawyer advertising simpler.

Effective January 1, lawyers only need to
include in advertisements the name and
“contact information” for at least one
lawyer or law firm. ER 7. 2(c) previously
required that any communication made
pursuant to the advertising Ethical Rules
include the name and “office address” for at
least one lawyer or law firm responsible for
the content. Not only was “office address”
not defined, but another Supreme Court
rule—Rule 32—used different terminology
by requiring that lawyers provide the State
Bar with their “street address” and “any
other post office address the member may
use.”
Though not defined in the rule, “contact
information” seems to contemplate the myri-
ad ways a person can be contacted these
days—regular mail, email, telephone, website,
and so forth—maybe even methods of com-
munication that haven’t yet been created.

MCLE

Lawyers also now may claim mandatory
continuing legal education credit for pro-
viding pro bono services to low-income
people. As of January 1, Rule 45(a)( 5),
ARIZ.R.S.CT., allows active members to
claim up to five hours of MCLE self-study
credit for providing pro bono service
through an approved legal services organi-
zation. Remember, however, it may only
satisfy five hours, which is the maximum
number of hours a lawyer is allowed to
accrue through self-study. (For more on this
change, see the article by Gary Restaino on
page 64.)

Limited-scope representation Finally, the Supreme Court made permanent some emergency rule changes that have been in effect since Jan. 1, 2013, which are intended to make it easier for lawyers to provide limited-scope or short-term legal representation—which in turn should provide more access to justice for people of limited means. The changes apply to Ethical Rules 1. 5, 4. 2, 4. 3 and 6. 5 as well as Rules 5. 1 and 11 of the Arizona Rules of Civil Procedure.

Significant changes include:
• Allowing for limited appearances in all
civil matters (civil Rule 5. 1);
• Adding comments to ERs 4. 2 and 4. 3

clarifying that a client to whom limited-
scope representation is being provided
is considered unrepresented unless the
opposing party or lawyer knows of the
limited–scope representation and the
identity of the lawyer providing it; and
• Specifying under civil Rule 11 that a
lawyer may help draft a document filed by
an otherwise self-represented person and
the lawyer need not sign the document.

Rule-change petitions, comments and the
court’s orders are on the Supreme Court’s web-
site at www.azcourts.gov/rules/Home.aspx

—Patricia Sallen

endnote

1. For a pro–con analysis of post-conviction disclosure, see Keith Swisher, Defendants Guilty of Being Innocent; Prosecutors Guilty of Being Human and William Montgomery, Adding to Prosecutor Duties Adds Little Justice, ARIZ. ATT’Y, May 2013. The articles discuss a Supreme Court staff draft of ER