Volume 16, No. 8 | April 11, 2017

eye on ethics

Q: I suspect the opposing counsel is not communicating my settlement offer to her client. Am I ethically permitted to email the offer to the opposing counsel, and copy the opposing party on the email?

A: No. This would be prohibited contact with a represented party. You would need the opposing counsel's consent to contact her client in this manner. See ER 4.2 and Ariz. Ethics Op. 02-02 for more information.

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Advancing Inclusion
2017 marks the 10-year anniversary of the Bar Leadership Institute.

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member news

Phoenix City Council Appoints Attorney Nicole Ong Colyer to Phoenix IDA Board of Directors: The Phoenix IDA, a leading industrial development authority in Arizona, announced the appointment of Nicole Ong Colyer, general counsel, Arizona State Department of Administration, to its board of directors. The Phoenix City Council appointed Ong Colyer in mid-February. Mayor Greg Stanton and Vice Mayor Laura Pastor nominated her to replace Marian Yim, who resigned in February. The State Bar of Arizona offers its sincerest congratulations to Nicole! Learn more about her by clicking here.

In the news

Alabama Governor's Resignation and Guilty Plea Followed State Supreme Court Order: Alabama Gov. Robert Bentley resigned and pleaded guilty to two misdemeanors on Monday after the state supreme court allowed impeachment proceedings against him. He pleaded guilty to two misdemeanors that stemmed from an alleged affair with a former aide. Read the developments here.

Wells Fargo Orders Former Senior Executives to Pay Back $75 Million: Wells Fargo said Monday that two former senior executives, including its longtime chief executive John Stumpf, must forfeit an additional $75 million in compensation after a scathing internal report found that they did too little to rein in the abusive sales practices that have rocked the mega-bank. The "clawbacks" of executive pay by the company are among the largest in history and a sign that big U.S. banks feel increasingly under pressure to show the public that they can hold themselves accountable for corporate wrongdoing. Read more on this story here.

from the bar

Happy Be Kind to Lawyers Day! Did you wake up to flowers? Did your assistant show up to the office with your favorite cup of coffee? Perhaps you got a little note saying you're appreciated? Did that lead you to raise your brow in suspicion? Well, don't be concerned, it's just their way of celebrating YOU on international Be Kind to Lawyers Day (April 11)! So, bask in the goodness�at least for one day! And Happy Be Kind to Lawyers Day, from the State Bar of Arizona!

Make a Difference by Volunteering for Law Day 2017! The State Bar of Arizona will host the sixth annual legal aid clinic event in Phoenix and Glendale on Saturday, April 29 in celebration of Law Day. The 2017 Law Day Legal Aid Clinics are part of an annual program that connects the legal community with the public to provide FREE civil legal help. We are seeking 24 volunteer lawyers to provide legal help in the following practice areas: bankruptcy and foreclosure, divorce and child support, wills and trusts, and immigration. Email Alberto Rodriguez at alberto.rodriguez@staff.azbar.org by Thursday, April 21 to volunteer.

Want to Attend Convention but Can't Afford It? The State Bar of Arizona is offering a limited number of seminar registration fee waivers to assist attorneys who are financially unable to attend the Annual Convention. The fee waiver applies to the continuing legal education programs only and entitles the recipient to attend any of the seminars during the convention at no cost. Applications must be received by Friday, May 5 and will be reviewed by the Convention Committee. Download the Seminar Registration Fee Waiver Application.

Bar's Public Service Center to Connect Lawyers With Public to Provide Legal Services and Resources: Have you heard the buzz regarding the Bar's soon-to-be-launched Public Service Center? Geoffrey Trachtenberg, Immediate Past President of the State Bar Board of Governors, uses his opinion piece in the April Edition of Arizona Attorney magazine to offer a glimpse into the innovative portal that will offer an online and on-demand model that will connect members of the public with attorneys. Learn more about the Public Service Center here.

Important Notice From Supreme Court Regarding e-Filing in Yavapai County: While e-filing of civil cases is now available in the Superior Court in Yavapai County through https://efile.azcourts.gov/, work is underway to add www.Turbocourt.com as a second e-filing service provider. Therefore, the Arizona Supreme Court has rescinded Administrative Order No. 2017-10 mandating e-filing for attorneys filing civil documents into the Superior Court in Yavapai County. See Administrative Order No. 2017-32.

Apply by April 21 to Serve as Judge Pro Tem for Tempe Court: The Tempe Municipal Court is seeking on-call Judges Pro Tem to serve in the absence of regular Municipal Court Judges, including weekends and holidays. Applications will be accepted through April 21, 2017, 5 p.m. The position announcement, including application form and instructions, is available through the Tempe Municipal Court website.

Represent the State Bar of Arizona in the ABA House of Delegates: Apply by May 3 to serve as an ABA Delegate. The control and administration of the ABA is vested in the House of Delegates, the policy-making body of the association. The House meets twice each year, at the ABA Annual and Midyear Meetings. One of the two appointments must be a young lawyer. For candidate criteria and an application click here.

Community Legal Services Board Vacancy: Apply by May 3 to serve on the CLS Board of Directors. The Board is the policy-making body of the organization, working collectively to ensure the fiscal integrity of the program, establish substantive law "priorities" and enhance the organization's standing within the community. For candidate criteria and an application click here.

Attorneys in Pinal County Needed to Help With Merit Selection Process: Apply by Wednesday, March 28 to serve on the Pinal County Commission on Trial Court Appointments. Applicants must reside in Pinal County Supervisorial District 2. The Commission screens judicial applicants and submit nominations to the Governor for his ultimate appointment to fill positions on the Pinal Superior Court bench. For candidate criteria and an application click here.

Meet the 2017 Board of Governors Candidates: The online Board election will launch May 4. In District 6/Maricopa County, 20 candidates are vying for nine seats. In District 8/Pinal County, the incumbent is running unopposed. Meet the candidates here.

Public Meetings and the State Bar: As of August 1, 2017 the State Bar of Arizona will be subject to the court's new public meeting rule. We're still in the process of understanding which groups are affected and hope to have a comprehensive list available soon. In the meantime, if you'd like to read the court's order click here.

Attorney Kristi M. Morley Ordered to Serve Interim Suspension for Failing to Appear and Represent Clients in Court: The Presiding Disciplinary Judge of the Arizona Supreme Court issued an order placing Kristi Michelle Morley of Phoenix on interim suspension, effective March 28, 2017. Read more on this disciplinary action here.

Felony Conviction Leads to Interim Suspension of Attorney Mollie A. Kesler of Scottsdale: The Presiding Disciplinary Judge of the Arizona Supreme Court issued an order placing Mollie A. Kesler of Scottsdale on interim suspension. More.

Drive Fore Justice Golf Tournament: The Arizona Bar Foundation is hosting their 3rd annual golf tournament�Drive Fore Justice�on May 20 at Moon Valley Country Club. Sign up for a fun day of golf, prizes and dinner by clicking here!

Civil Rights Activist Karen Korematsu to Speak at AAABA Annual Dinner: The Arizona Asian American Bar Association invites you to attend their 21st Annual Scholarship Awards and Installation Banquet on Thursday, April 20 featuring Karen Korematsu of the Fred T. Korematsu Institute. Tickets and sponsorship opportunities are still available. Click here to learn more and to reserve your seat.

Public Asked for Input on Eight Candidates for Pima County Superior Court Vacancy: The Pima County Commission on Trial Court Appointments is asking for public input on eight candidates for a vacancy on the Pima County Superior Court created by the retirement of Judge K.C. Stanford. Written comments must be submitted by April 14, 2017 or in person at a hearing on April 20, 2017. Click here to view candidates.

Are You an Attorney Who Has Good News to Share? Have you recently been recognized for contributions you make to the communities you serve? Is your firm raising money or collecting food for charity over the holidays? 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.

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.

Practice Tip - Be Careful When Issuing Deposition Subpoenas in Discovery: Read about a potential conflict of interest here from State Bar Member Discount provider Ahern Insurance, a professional liability insurance brokerage firm.

Save at Office Depot: State Bar members save 10% off the web price on more than 30,000 office supplies through the Office Depot Partner Program, here. Shop online and receive free shipping on orders over $50*, or shop in store from one of over 3000 retail store locations! Click here to start shopping now!

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court decisions

Arizona Court of Appeals
Division One
Division Two

March 28, 2017 - 1 CA-CV 15-0756 - Michael Wassef v. Arizona State Board of Dental Examiners
1. Whether due process requires a hearing before a professional regulatory board orders a licensee to undergo a physical examination (inpatient substance abuse evaluation). 2. Whether due process requires a hearing before a professional regulatory board suspends a licensee's license (for noncompliance with the order to undergo a substance abuse evaluation). Read opinion.

March 23, 2017 - 2 CA-CV 2016-0144 - Varco, Inc. and RW Warehouse v. UNS Electric, Inc.
Did the trial court abuse its discretion by granting plaintiffs' motion for a new trial based on misconduct by defendant's counsel with respect to precluded evidence? Read opinion.

9th Circuit Court of Appeals

April 10, 2017 - 15-15000 - S.H., A Minor v. United States of America
In an action brought by a military family under the Federal Tort Claims Act (FTCA) against the United States, alleging that plaintiff's child's birth injuries resulted from the negligent approval of plaintiff's command-sponsored travel overseas, the district court's judgment in favor of plaintiffs is vacated where: 1. plaintiff's claims arose in Spain and therefore were barred by the FTCA's foreign country exception; and thus 2. the claims must be dismissed for lack of subject matter jurisdiction. Read opinion.

April 10, 2017 - 14-17313 - Brendan Nasby v. E.K. McDaniel, Nevada Attorney General
Dismissal of a petition for habeas corpus relief and denial of motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) are vacated where the principle articulated in the line of cases beginning with Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997), requires a remand because the district court, which failed to obtain and review the relevant portions of the state court record and did not hold an evidentiary hearing on petitioner's claims, did not perform the 'independent review' of the basis of the state court's decision that Jones requires. Read opinion.


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