Free Memorandum - District Court of Arizona - Arizona

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Roger L. Cohen, #004409 Kathi Mann Sandweiss, #011078 JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 Attorneys for Defendants Ross

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SHIMKO & PISCITELLI, et al., Case No: CIV-04-78-PHX-FJM Plaintiffs, v. DAVID GOLDFARB; RICHARD ROSS, et al. Defendants. MEMORANDUM OF COMPLIANCE WITH ER 8.3

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Pursuant to this Court's Order of June 26, 2008, Counsel Roger Cohen submits the following memorandum evidencing his compliance with ER 8.3, Rule 42, Rules of the Arizona Supreme Court. I have fully complied with my obligations under ER 8.3, in that (1) my obligations of attorney-client privilege under ER 1.6 preclude me from taking any further action at this time, in accordance with State Bar Opinion No. 94-12; (2) given that there is no specified time period for reporting, and to avoid the appearance of tactical maneuvering, I determined that it was appropriate to wait to take any further action until after the completion of litigation; and (3) soon after obtaining information that might otherwise require reporting, I obtained actual knowledge that a complete and accurate report of Mr. Shimko's conduct had already been made to Bar authorities and that an additional report would be superfluous pursuant to Opinion No. 90-13.

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

ER 8.3 (a) requires that a lawyer who knows that another lawyer has committed an ethical violation raising a substantial question of the other lawyer's honesty, trustworthiness or fitness to practice "shall inform the appropriate professional authority, except as otherwise provided in these Rules or by law." ER 8.3 (c) further provides, in relevant part, that the Rule "does not require disclosure of information otherwise protected by ER 1.6." ER 1.6 prohibits the disclosure of "information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted or required by paragraphs (b), (c) or (d) or ER 3.3(a)(3)" The Arizona Committee on the Rules of Professional Conduct, in Opinion No. 9412, a copy of which is attached as Ex. 1 to this Memorandum, considered the question whether an attorney who knows of another attorney's unethical conduct, but has been expressly instructed by his client not to report the other attorney's conduct to the State Bar may ethically refrain from or delay reporting the other attorney's conduct. The

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Committee initially determined that, since the underlying facts on which the inquiring attorney based determination of unethical conduct were obtained from his client, ER 1.6 applied to the information. The Committee further determined that, since the inquiring attorney's client had not consented to disclosure, and since none of the other exceptions to ER 1.6 applied, "ER 1.6 trumps ER 8.3 and the facts cannot be disclosed." In the present case, without here disclosing any confidential attorney-client communications, I made an informed decision, on the basis of facts and considerations falling within the exception to ER 8.3 outlined in Opinion 94-12, to refrain at this time from filing a State Bar complaint against Mr. Shimko. Further, my decision not to file a complaint at this time is substantially justified and appropriate, as set forth above, for the following reasons: 1. On or about April 28, 2008, I received copies of complaint letters sent by

counsel Richard McDaniel to the disciplinary authorities in Arizona and Ohio and thereby had actual knowledge that Mr. Shimko's conduct had been reported in both States. That 2
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

being the case, the filing of an additional complaint would have been merely cumulative and would not have accomplished any substantive purpose. See Opinion No. 90-13, fn 8 ("If an attorney is confident that a complete and accurate report of another attorney's misconduct has already been reported to Bar authorities, sufficient to trigger an appropriate investigation under the circumstances, there is no reason to require an additional superfluous report."). (See Ex. 2, attached hereto). 2. ER 8.3 does not speak to the timing of the filing of a complaint, and I

believe that it would have been more appropriate to report Mr. Shimko's conduct after the conclusion of this lawsuit, lest it be perceived that the complaint was a tactical maneuver designed to obtain leverage in the litigation. DATED this 14th day of July, 2008. JABURG & WILK, P.C.

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By s/Roger L. Cohen Roger L. Cohen Attorneys for Defendants

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

CERTIFICATE OF SERVICE I hereby certify that on July 14, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing, and for transmittal of a Notice of Electronic filing to the following CM/ECF registrants: David A. Welling TIMOTHY SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 Attorneys for Plaintiffs David and Rhona Goldfarb 11437 N. 53rd Place Scottsdale, Arizona 8525 Pro Per Defendants Goldfarb Richard J. McDaniel 11811 N. Tatum Blvd., Suite 1051 Phoenix, Arizona 85208 Attorney for Woodcock Defendants

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By: s/J. Sullivan

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