Volume 12, No. 17 | August 20, 2013

eye on ethics

Q: My client is concerned about the ethical conduct of opposing counsel and wants to use that as a negotiation tactic in settlement discussions. May I tell opposing counsel that I will notify the State Bar of their conduct if they don't agree with my client's settlement demands?

A: No. It is improper to use the threat of filing a Bar charge against a lawyer to gain a strategic advantage in litigation on behalf of a client because such a threat may, for example, violate prohibitions against engaging in criminal or fraudulent conduct (ER 8.4(b)), advocating or asserting frivolous claims (ER 3.1), or using tactics that "have no substantial purpose other than to embarrass, delay or burden a third person," (ER 4.4). ABA Ethics Opinion 94-383. It may also be considered unprofessional conduct in Arizona. Rule 54(i), Ariz. R. Sup. Ct.


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New Bar Leader
Read how Whitney Cunningham went from speech and debate pro to State Bar President.

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member news

Arizona Lawyer Mark Harrison Honored by Lawyers Group: Mark Harrison, Chairman of the Justice at Stake (JAS) Board of Directors, received a prestigious award presented by the Association of Professional Responsibility Lawyers at a reception in San Francisco. more�

Arizona Attorneys Volunteer to Answer Immigration Questions: The State Bar of Arizona continues to offer quality consumer-related programs because of the generosity of committed lawyers. On Tuesday, August 6, volunteer attorneys Bami Adelayo, Simona Dima, Mark Egan, Magaly Fontes, Roya Habich, Jared Leung, Mac Nayeri, and Cynthia Perez answered consumers' immigration law questions on the State Bar of Arizona and 12 News' Lawyers on Call program. The State Bar thanks them for their continued commitment to proving access to justice.

In the news

Citing Dictionary, U.S. District Judge Jed Rakoff Turns Up the Heat on Banks: As part of its crusade against bank fraud, the U.S. Attorney's Office in Manhattan is relying on a once-obscure federal statute called the Financial Institutional Reform, Recovery, and Enforcement Act (FIRREA). Interestingly, FIRREA's potency will depend on whether judges give a broad reading to a single word in its text�namely, "affect." Fortunately for prosecutors, on Monday a second federal judge adopted their definition of the verb in a case involving Bank of America Corporation's Countrywide Financial unit. more�

A-Rod's Lawyer says MLB's Evidence Won't Hold Up: Major League Baseball's evidence against Alex Rodriguez is so weak he shouldn't serve even one inning of his 211-game suspension, the lawyer for the Yankees slugger said Monday. more�

Bar Associations Help Veterans: Arizona, along with Virginia and Kansas, participated in an Army OneSource (AOS) pilot project to help shape the program so it can be implemented nationwide. The project raises awareness about military legal assistance, recruits more civilian attorneys to help, and educates legal professionals on aspects of the military culture and federal laws that could alter the nature and content of legal advice. more�

from the bar

Volunteers Needed For Supreme Court Committees and Legal Services Board: Apply by September 6th to be considered for service on the Arizona Supreme Court's Committee on Character and Fitness or the Court's Committee on Examinations. Southern Arizona Legal Aid's Board of Directors has two openings. Learn more here.

It's Not too Early to File Your MCLE Affidavit: Why wait until the deadline? Online filing of your 2012-13 MCLE affidavit has never been easier and it�s available now. Remember, the filing deadline is no later than September 15, 2013. You may access your personalized CLE tracking page and MCLE affidavit on the members' website by clicking here.

Lawyers Initiate Formation of Franchise & Distribution Law Section. Join Them! The process has begun to form the first-ever Franchise & Distribution Law Section of the State Bar of Arizona. The proposed Section will be of interest to all lawyers (both litigation and transactional) whose practice involves franchising, PMPA, dealership, licensing, direct-sales, and multi-level-marketing matters (among others). In order for the proposed Section to be approved by the Bar, however, the signatures of at least 100 interested State Bar members are needed. If you would like to join the proposed Section, please review the proposed bylaws and download and sign the petition. Please e-mail your signed petition to Aaron Schepler.

Thousands are Coming Home from War to Legal Issues. You Can Help! Over the next two years, large numbers of Servicemembers will return home from deployment. Coming home from combat can present a difficult reintegration with family, friends and community. Many will face legal issues, increasing the overall demand for military legal assistance. Register online to help. more�

Ninth Circuit Seeks Applicants for Two Bankruptcy Judgeships: The United States Court of Appeals for the Ninth Circuit invites applications from highly qualified candidates for two (2) Bankruptcy Judgeships for the District of Arizona. These positions will be available in June and September, 2014, respectively. Please be aware that the selection process may take up to 10 months to complete. The official duty stations for these positions are in Phoenix and Tucson. more�

Want to Promote Your Mediation/Arbitration Services? Sign up now to advertise in Arizona Attorney's 2013 ADR & Mediation Guide. It will support your new business development efforts through referrals from other attorneys. Deadline to reserve your space is Friday, August 30, so don't delay. Contact Kate Cortez to request more information.

Bar Flys Challenge You to Get Fit: State Bar of Arizona members, their employees, law students, and law school faculty members are encouraged to join Team "Bar Flys" for the P.F. Chang's Rock 'n' Roll Marathon and Half Marathon in January. The Bar's "Get Fit Challenge" is a friendly competition that offers the first 65 registrants with an incentive to participate--it will subsidize half of your registration fee. more�

We Want to Help You Make Payroll: The State Bar's new partnership with SurePayroll, a provider of online payroll services to small businesses nationwide, helps you save time and money processing payroll. They offer a flat monthly fee that can save you up to 50% over traditional providers and will automatically pay and file federal, state and local payroll taxes. You can even process payroll from your mobile device. Click here or call 877.954.7873 to find out more.

OfficeMax Wants You to Save Even More: OfficeMax offers discounted pricing to State Bar of Arizona members on more than 12,000 items, including office supplies, office equipment, office furniture and more. Now you can save even more by redeeming your Partner Advantage coupon by September 28, 2013. Click here for Bar Personalized Pricing specials and here for your Partner Advantage coupon. Call 800.248.6343 to place a phone order.

State Bar Member Discounts: For a listing of all State Bar member discounts, click here.

court decisions

Arizona Court of Appeals
Division One
Division Two

August 15, 2013 - 1 CA-SA 13-0099 - Alexander Jordan v. Hon. Crane McClennen and Hon. Mark Anderson
Whether, when a local rule allows a party to an appeal from a limited-jurisdiction court to file a digital, video or audio recording of a proceeding, Superior Court Rule of Appellate Procedure-Criminal 8(a)(3) requires the parties to the appeal to reference the specific portions of the recording containing evidence supporting their contentions. Read Opinion.

July 31, 2013 - 2 CA-CR 2011-0346 - State of Arizona v. William Peter Moran
(1) Did the trial court err in finding reasonable suspicion for the defendant's traffic stop or probable cause for his arrest for suspected driving under the influence of an intoxicant (DUI)? (2) Did the defendant's two DUI convictions from Nevada for offenses committed in 2005 support his convictions for aggravated DUI pursuant to A.R.S. � 28-1383(A)(2)? Read Opinion.


9th Circuit Court of Appeals

August 19, 2013 - 11-56592 - David Hildes v. Arthur Andersen, LLP
The dismissal of a securities fraud action is reversed and remanded, where: 1) the district court erred by denying plaintiff leave to amend his complaint to add claims under section 11 of the Securities Act of 1933 against former outside directors of Peregrine Systems, Inc.; 2) the district court erred in concluding that amendment would be futile because the "negative causation" defense barred the proposed claims; and 3) plaintiff sufficiently alleged that material misstatements in a registration statement caused his losses even though prior to the filing of the registration statement he had entered into an agreement that his shares in Harbinger Corp. be voted in favor of a merger between Peregrine and Harbinger. Read Opinion.

August 16, 2013 - 12-16145 - Donald T. Stapley v. Lisa Aubuchon and Andrew Thomas
In a 42 U.S.C. section 1983 action, alleging defendants initiated a frivolous RICO suit against plaintiff to harass him as part of an ongoing political war in Maricopa County involving the Board of Supervisors, Sheriff Joe Arpaio and others, the district court's denial of defendants' motion to dismiss based on absolute immunity is affirmed where under the circumstances, the actions of defendants were not entitled to absolute immunity because their actions were not sufficiently analogous to those of a prosecutor. Read Opinion.




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