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that the lawyer simply provided legal
services to a fiduciary. In the
Hansen case, the “something more” was
an allegation of the lawyer’s “fraud
and collusion” with the fiduciary.
What else “something more” may
include remains to be seen. And it’s
not clear whether the statute applies
to cases other than those involving
probate, trust, and estate matters.
It’s part of the Arizona Trust Code
and arguably would not apply in the
commercial context. 8
It also should be noted that the
statute will not have an effect on
lawyer discipline to the extent that
the lawyer breached an ethical duty.
In Fickett, for instance, the lawyer
clearly violated his ethical duties of
competence and diligence in not
investigating obviously suspicious
circumstances implicating his guard-
ian–client. 9 He would have been
subject to discipline even though he
might have arguably avoided civil
liability under the statute. Moreover,
the statute will not relieve lawyers of
liability to third parties for violations
of ER 1. 2(d) (counseling a client
to engage, or assisting a client, in
criminal or fraudulent conduct) or
ER 4. 1(b) (failing to disclose facts
to third persons when necessary to
avoid assisting a criminal or fraudu-
lent act by a client).
Finally, some of the situations
intended to be covered by the stat-
ute can still result in trouble for the
unwary by virtue of ER 1. 7 (Con-
flict of Interest: Current Clients),
especially ER 1. 7(a)( 2) and its con-
cern for lawyers’ duties to “third
persons” separate and apart from
representing a fiduciary. In Shano,
for instance, the court didn’t need
to use derivative liability concepts to
disqualify the personal representa-
tive’s lawyer; he could not possibly
counsel the personal representative
on how to fairly and impartially deal
with the competing estate benefi-
ciaries when he additionally repre-
sented one of them, to whom he
owed a duty of undivided loyalty.
In any context, and regardless
of the Arizona Trust Code statutes,
we need to be mindful of our ethical
duties to persons who are not our
clients. 10 There are civil liability and
disciplinary considerations that exist
separate and apart from any deriva-
tive liabilities that may now be for-
given by statute.
1. Obligations to Third Persons
(Part 1), ARIZ. ATT’Y (May
2012) at 8; and Derivative
Liabilities a Danger, ARIZ.
ATT’Y (June 2005) at 10.
2. Fickett v. Superior Court, 558
P.2d 988 (Ariz. Ct. App.
3. Estate of Shano, 869 P.2d 1203
4. A good discussion of these
cases is found at GEOFFREY C.
HAZARD, W. WILLIAM HODES
& PETER R. JARVIS, THE LAW
OF LAWYERING § 2.07 (4th ed.
2014). Note that some of the
cases imply that the lawyers
aided and abetted their clients’
breaches of fiduciary duties
and were liable on that basis.
5. Wetherill v. Basham, 3 P.3d
1118 (Ariz. 2000).
6. 58 P.3d 965 (Ariz. 2002).
7. Hansen v. Gorman, CV2015-
000967, Hon. Joshua D.
Rogers’ Under Advisement
Ruling dated April 19, 2016,
denying Defendants’ Motion
to Dismiss. The minute entry
can be found at superiorcourt.
maricopa.gov/docket.civil-courtcases/casesearch and by
then following the prompts.
8. See, e.g., Reynolds v. Schrock,
107 P.3d 52 (Or. 2005), where
a lawyer for a joint venturer
was held liable for damages in
a business deal his client caused
to a co-venturer to whom the
client owed fiduciary duties.
9. ER 1. 1 (Competence) and
ER 1. 3 (Diligence), ARIZ.R.
PROF.CONDUCT; Rule 42,
ARIZ.R.S.CT. The facts leading
up to Fickett can be found
in Guardianship of Styer v.
Christoffel, 536 P.2d 717
(Ariz. Ct. App. 1975).
10. See examples at Obligations
to Third Persons, supra note
1, and Obligations to Third
Persons (Part 2), ARIZ. ATT’Y
(June 2012) at 8.
EYE ON ETHICS —continued from p. 8