This article has been published in “The Advocate”, a monthly publication of the Arizona Association for Justice/Arizona Trial Lawyers Association, November - December 2015 issue, @2015 by Steven J. Bruzonsky, Esq.
A Sample Amended ER 1.15 Ninety Day Notice
Arizona ER (Ethics Rule) 1.15 was amended effective January 1, 2014, in that ER 1.15(f) allows a lawyer to serve written notice upon a third party that the lawyer will distribute the property to the client “unless the third party initiates legal action and provides the lawyer with written notice of such action within 90 calender days.” If the third party fails to provide timely written notice of a legal action, then the lawyer may ethically disburse the property to the client, provided that the disbursement is not prohibited by law or court order. The rule does not require you to make a written determination that a lien claim is unenforceable or otherwise not a matured legal or equitable claim. Nonetheless, you should not use this notice rule to intentionally avoid paying legitimate lien claims, even if there may be a dispute regarding the amount of the lien. For more detailed information regarding the amended ER 1.15, please see “New Tool Addresses Third-Party Claims to Client Funds”, by Geoff Trachtenberg & Patricia Sallen, Arizona Attorney January 2014.
ER 1.15 as amended sets forth certain requirements therein which are to be included in the ER 1.15 90 day notice. Following is a sample ER 1.15 ninety day notice letter, and of course you will need to fill in the blanks:
Certified Mail Return Receipt [ARCP Rule 4.2(b)]
[Name and address of Lien Claimant]
Re: Our Client/Your Patient: ______________
Account No.: ________________
Date(s) of Service: ________________
Date of Accident: _____________
My law firm represents the above patient concerning his (her) personal injury The purpose of this letter is to fully satisfy the ethical requirements of Arizona Ethical Rule (ER) 1.15; and to notify you that we believe that you have no right of any further monetary payment and/or no lien rights against our client’s personal injury settlement.
1. 90 calender day notice pursuant to ER 1.15:
Pursuant to Rule 42, Rules of the Supreme Court of Arizona, Rules of Professional Conduct, ER 1.15, I have determined that you do not have a matured legal or equitable claim to the personal injury settlement proceeds, described below, in this case, for the reasons set forth below. Please
be advised that if you do not initiate legal action and provide me with written notice of such action within 90 calender days from your receipt of this letter, then I may immediately thereafter disburse the settlement proceeds without regard to your lien claim, as permitted by ER 1.15.
2. Description of settlement funds and name of client:
Our Client: ______________
Settlement Funds: $_________ total settlement funds [$_______ liability & $________ Underinsured Motorists (UIM)] (these are the policy limits; there is no other applicable auto insurance or umbrella coverage available).
3. You are required to provide notice that litigation is being filed within the ninety calendar days, as discussed above, to:
[Name, address and contact information for attorney.]
This Notice serves to comply with Rule 42, Rules of the Supreme Court of Arizona, Rules of Professional Conduct, ER 1.15. Contact me at once if you believe we have not complied with ER 1.15.
4. Detailed Discussion - Why your lien claim does not apply to the settlement proceeds of this personal injury claim:
5. Additional Information:
[State any additional information about the client, injuries and damages, other lien claims, etc if you feel such information may be helpful in getting the lien claimant to waive/release or take no further action concerning the lien claim.]
Thank you for your courtesy and assistance.”