4.1:200 TRUTHFULNESS IN OUT-OF-COURT STATEMENTS

• Jurisdiction: Arizona

4.1:200 Truthfulness in Out-of-Court Statements

ER 4.1(a) prohibits a lawyer from knowingly making a false statement of material fact or law to a third person during the course of representation of a client. ER 4.1 has been applied to false statements of fact made to courts and other tribunals, and thus, there is some overlap between it and ER 3.3. For instance, in In re Higgins, 180 Ariz. 396, 884 P.2d 1094 (1994), the Arizona Supreme Court concluded that respondent Higgins violated ER 4.1(a) when, in connection with the presentation of an ex parte motion seeking the disbursement to his client of certain funds from an escrow count, respondent falsely represented to the court that opposing counsel had approved the granting of the motion. Violations of ER 4.1(a) are grounds for the imposition of discipline. In re Wurtz, 177 Ariz. 586, 870 P.2d 404 (1994); In re Blankenburg, 143 Ariz. 365, 694 P.2d 195 (1984). For example, in In re Duckworth, 185 Ariz. 197, 914 P.2d 900 (1996), the court approved of disciplinary sanctions against a lawyer who, in connection with a land transaction involving the lawyer's client, provided the opposing party in the transaction with opinion letters concerning the land's title, which contained false material statements of fact. The Arizona Supreme Court also cited ER 4.1(a) in approving the disbarment of a prosecutor who knowingly presented false testimony in a capital murder prosecution. In re Peasley, 208 Ariz. 27, 90 P.3d 764 (2004). "We cannot conceive of a more serious injury, not just to the defendants but to the criminal justice system, than a prosecutor's presentation of false testimony in a capital murder case." Id. at 36, 90 P.3d at 773; see also State v. Minnitt, 203 Ariz. 431, 439-40, 55 P.3d 774, 782-83 (2002) (reversing convictions and dismissing charges with prejudice in the capital case in which Peasley was the prosecutor); ER 3.3(a)(1).

In Arizona Ethics Opinion No. 87-25, the Ethics Committee (the "Committee") concluded that an attorney may not contact and interview a named but unserved defendant in litigation instituted by the attorney, without revealing the adversarial nature of the relationship that exists between the defendant and the attorney's client. Specifically, the Committee determined that the attorney attempting to conduct such an interview must first inform the unserved defendant that he or she has been named as a defendant in an action, state that he or she represents the plaintiff, disclose...