Volume 15, No. 19 | September 13, 2016

eye on ethics

Q: I am a solo practitioner in a small town. Last year, I mediated a dispute between two neighbors over maintenance of an overgrown oleander. Now, one of the neighbors is starting a business selling extra-wide shoes over the Internet, and she wants to retain me to draw up business formation documents. Am I allowed to represent her?

A: Yes. You are prohibited only from representing a party in connection with a matter in which you participated personally and substantially as a mediator. This representation involves a different matter, so you do not have a conflict of interest. See ER 1.12(a).

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Leadership, Legacy
Read our profile of new State Bar of Arizona President Lisa Loo.

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member news

Attorney Oscar Lizardi Named Tucson Hispanic Chamber Business Man of the Year: Oscar Lizardi, a partner in the Tucson law firm Rusing Lopez & Lizardi, has been selected as the Tucson Hispanic Chamber of Commerce Hispanic Business Man of the Year. The honor is given annually to community leaders who give back to the community as well as being role models in their particular industry.

Lizardi has a long history of working with community organizations, in particular those that support children, including Child & Family Resources, the Children's Action Alliance, San Miguel High School, the Tucson Conquistadores, Angel Charity for Children and Tu Nidito. The State Bar of Arizona offers its sincerest congratulations to Mr. Lizardi.

Attorney Andrew Plattner Named to Jewish Community Foundation Board of Directors: Andy Plattner is a new member of the governing board of the Jewish Community Foundation of Greater Phoenix. For generations, the Jewish Community Foundation has been an independent, trusted, and objective resource for philanthropy in the Greater Phoenix area. Plattner is an attorney with the law firm of Sherman & Howard where he is a Member in the firm's Healthcare, Business and Corporate, and Estate and Tax Planning Practice Groups in their Sherman & Howard's Scottsdale office. Congratulations, Mr. Plattner!

In the news

Arizona Supreme Court Rules Cell Phones Are Private, Even in Case Alleging Necrophilia and Rape: Leaving your cell phone in an apartment where you have been a guest doesn't give police the right to search it without a warrant, the Arizona Supreme Court ruled Monday. In a decision with major privacy implications, the justices also said the fact that someone does not lock his or her cell phone with a code is not an invitation for anyone, including the police, to see what's in it. More.

Target Hit With $4.6 Million Jury Verdict at Trial; Retailer Had Nixed $12K Settlement Offer: Target recently got hit with a $4.6 million jury verdict after a South Carolina woman in 2014 was stuck with a hypodermic needle her 8-year-old daughter found in the store parking lot. More.

from the bar

Two Days Left to File MCLE Affidavits Before September 15 Deadline: You don't need to wait! Online filing for your 2015-16 MCLE affidavit is available now. Filing deadline is no later than September 15, 2016. You may access your personalized CLE tracking page and MCLE affidavit on the members' website by clicking here.

Rule Changes Help Define State Bar Mission: The State Bar of Arizona's consumer protection role has been enhanced thanks to a revised rule from the Arizona Supreme Court. The rule change was the result of recommendations made by the Task Force on the Review of the Role and Governance Structure of the State Bar of Arizona. The Task Force was chaired by former Chief Justice Rebecca White Berch and included attorneys plus community leaders. More.

State Bar Seeks Volunteer Attorneys to Help Veterans With Their Landlord/Tenant Issues: The State Bar of Arizona will host a civil legal help clinic at the 2016 Glendale Stand Up for Veterans event on Saturday, September 24 from 8 a.m. to 1 p.m. We are in need of two attorneys who can help address veterans' landlord/tenant issues. If you're interested in volunteering, please contact Alberto Rodriguez via email or at 602.340.7337.

Public Asked for Input on Candidates for Arizona Supreme Court: The Commission on Appellate Court Appointments is asking for public comment on nine candidates for two openings on the Arizona Supreme Court. The Commission will meet to interview the candidates on September 30 and comments should be received no later than September 28. View the nine candidates here.

14 Applicants Being Considered for Arizona Court of Appeals: The public is asked for comments on 14 applicants for an opening on Division I of the Arizona Court of Appeals created by the retirement of Judge Maurice Portley. The Commission on Appellate Court Appointments will review the applications and hear comments at a public meeting on September 29. Comments must be received by September 27 to be considered. View applicants here.

Apply by October 3 for CLE Institute: The CLE Institute is a professional development program for CLE presenters who want to increase their proficiency in presenting CLE programs. This program is ideal for newer CLE presenters seeking to sharpen their presentation skills and experienced speakers looking for the latest strategies in adult education. Applicants will be notified of their selection status by October 10. For more information and to apply, click here.

Volunteers Sought for Judicial Conduct Commission and Legal Services Board:  Apply by October 5 to serve on the Arizona Commission on Judicial Conduct or the DNA-People's Legal Services, Inc. Board of Directors. Candidate criteria and an application form are available here.

Join the Bar Flys for a Full or Half Marathon, or 10K or 5K, at a Reduced Registration Fee! Arizona's legal community is coming together for the eighth consecutive year to run in the Rock 'n' Roll Arizona Marathon, Half Marathon, and 10K "Rock Corporate," to be held on Sunday, Jan. 15, 2017. This year, you can also run in the 5K on Saturday, January 14, 2017. For more, click here.

Help Consumers by Writing Law-Related Tips! The State Bar of Arizona seeks attorneys in all practice areas to offer consumer tips via its social media platforms. We'll be sharing tidbits of information to help consumers begin addressing their legal issues associated with family law, landlord/tenant, estate planning, personal injury, immigration, and DUI among others. If you're interested, email Alberto Rodriguez for more information.

Keep Sharing Your Good News with Us! Have you recently been recognized for contributions you make to the communities you serve? Are you a leader who is being recognized for advancing the legal profession? If so, we want to hear about it! Email Alberto Rodriguez to be considered for inclusion in a future issue of eLegal under Member News.

Practice Tip: Data security for your firm, step one: list all the technology assets at your firm. Click here for a simple template provided by LawPay, a State Bar Member Discount Provider.

Save Money on Car Insurance: You could qualify for an exclusive State Bar member discount with GEICO. Click here or call 800.368.2734 for a no-obligation quote.

No Annual Fee Platinum Rewards State Bar of Arizona MasterCard: Apply now and earn double reward points on purchases for the first 60 days. See full terms and conditions here.

Discounts on Rental Cars, Hotels and More: Click here for the list of companies offering discounts to State Bar members.

court decisions

Arizona Court of Appeals
Division One
Division Two

August 23, 2106 - 1 CA-CV 15-0211 - Tammy D. Santorii v. MartinezRusso, LLC
1. Whether Arizona real estate statutes and regulations establish that an employer-employee relationship exists between real estate brokers and their salespersons as a matter of law, so as to establish vicarious liability in a wrongful death case. 2. Whether Arizona real estate statutes and regulations establish a non-delegable duty that brokers are responsible for all actions of their salespersons. Read Opinion.

August 25, 2016 - 2 CA-CV 2015-0212 - Falcone Brothers & Associates, Inc. v. City of Tucson 
1. Did the city's procurement code, Tucson, Ariz., Code �� 28-91 to 28-94, 28-113 to 28-118 (1987 & Supp. 2007), violate due process and deprive the plaintiff the right to a jury trial by requiring that contract disputes be resolved by the city's director of procurement? 2. Insofar as the plaintiff failed to challenge the procurement director�s decision through the process provided by the city's procurement code, did the trial court err in dismissing the complaint based on the doctrines of administrative exhaustion, res judicata, or collateral estoppel? Read Opinion.

9th Circuit Court of Appeals

September 12, 2016 - 14-15189 - Miriam Mendiola-Martinez v. Joe Arpaio, Maricopa County Sheriff
In an action brought under 42 U.S.C. sections 1981 and 1983 by a former female prisoner who alleged that her constitutional rights were violated when she was shackled and restrained during her labor and postpartum recovery, the District Court's judgment is: 1. vacated in part as to summary judgment on the shackling claims where plaintiff presented sufficient evidence for a reasonable jury to conclude that by restraining her when she was in labor and postpartum recovery, the defendants exposed her to a substantial risk of serious harm; and 2. affirmed in part as to summary judgment for the defendants on plaintiff�s remaining claims regarding a postpartum leg tether, medical supplies, pregnancy diet and nutrition, and equal protection. Read Opinion.

September 12, 2016 - 14-72327 - Sandra L. Bahr v. U.S. Environmental Protection Agency
In a petition for review of an order of the EPA approving Arizona's Five Percent Plan for airborne particulate matter around Maricopa County, promulgated under the Clean Air Act to achieve a five percent annual reduction in PM-10, a harmful air pollutant, alleging that the EPA acted contrary to law by failing to require that Arizona include an updated analysis of best available control measures and most stringent measures in the Five Percent Plan, the petition is: 1) granted in part where the EPA's interpretation of the contingency measures requirement do not receive deference, because under the plain language of 42 U.S.C. section 7502(c)(9) contingency measures are measures that will be taken in the future, not measures that have already been implemented; and 2) denied in part where the EPA's determination that the control measures in Arizona's Five Percent Plan did not need to be updated. Read Opinion.


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