The ruling was issued in a case where the City of Phoenix agreed to rebate half of its future sales tax revenues from the “CityNorth” retail project, up to $97.4 million, in exchange for the developer building parking spaces and dedicating part of those parking spaces exclusively to drivers participating in commuting programs. The decision hinged on the presumption that the value of the dedicated parking spaces did not come close in value to the $97.4 million in tax benefits. (Note that, had a present value calculation been performed for the $97.4 million in payments over 45 years, it is not clear that the trade off in value would have been unequal, especially given the uncertainty of the timing and amounts of those payments.)

The ruling arguably prohibits any Arizona governmental entity from giving tax breaks to a private enterprise in exchange for locating a new business enterprise, or expanding an existing facility, in Arizona, unless the government entity receives direct consideration of roughly equal or greater value. New tax revenues expected to be generated from the expanded economic activity do not qualify as direct consideration to the government under the court’s ruling.

Arizona is struggling to attract new businesses and jobs to the state. We will have to be all the more creative and thoughtful if we are to be successful without the ability to offer the incentives being liberally offered by other states.

While Arizona does have an anti-deficiency statute which prohibits lenders from pursuing some borrowers personally for the balance due on a note after a foreclosure sale, its protection is generally limited to purchase money mortgages on residential property of two and one-half acres or less. Purchase money mortgages are those given to secure the payment of the balance of the purchase price or to secure a loan to pay all or part of the purchase price.

Although the anti-deficiency statute may at first appear fairly mundane, for many homeowners, investors or trusts, its application is anything but. Common issues that require careful consideration and analysis include: (1) the impact of equity lines of credit; (2) personal guarantees; (3) the potential for cross-defaults under other loans; (4) whether the property is a “dwelling” under the statute; (5) whether the lender has waived any right to a deficiency; and (6) the amount of the deficiency. The analysis of whether a borrower has potential liability for a deficiency (and to what extent) often requires careful review of the loan and security documents, as well as the borrower’s actions following the execution of the note and security instrument. Although there are many sources that purport to provide this information, a comprehensive analysis should be conducted by an attorney experienced with these matters.

Most attorneys and clients intuitively understand the importance of good communication from the attorney to the client in keeping the client apprised of developments in the matter in which the attorney is providing legal services, even if some attorneys sometimes fail to live up to this requirement in practice.   There is no denying that such communications are a critical part of the attorney-client relationship, and are an area of focus in our firm.  Indeed, probably ninety percent of potential clients that come in looking for new counsel because they are dissatisfied with their current or prior counsel indicate that poor communication and/or a lack of up-to-date information from their attorney is the reason that they are looking for a change.

With that said, however, candid, open communications from the client regarding all aspects of a legal engagement are of equally critical importance in developing and maintaining the attorney-client relationship and achieving the results that the client seeks to achieve.   We value our client relationships and will aggressively move to achieve our clients’ desired results, but without candid and open communications from the client as to the desired objective, counsel’s actions may fail to achieve the desired results.  Below are some suggestions for clients that will help ensure that you and your attorneys are on the same page, thereby maximizing the likelihood of the desired outcome. 

Setting the Goal 

Before your attorney can take action to achieve your desired objective, you must first determine what that desired objective is.  Spend some time thinking on your own about what you actually want to accomplish in the legal engagement, and then discuss that goal with your counsel.  This is not to say that the ultimate goal for the engagement should be set without the advice of counsel.  To the contrary, the only reasonable way to set a realistic, achievable goal for a legal engagement is to engage in a candid, open discussion with your attorney regarding your desired outcome, other possible outcomes and scenarios, legal issues, and financial considerations.  Listen to your attorney, and be realistic in setting your goals and expectations.

Be Candid About Financial Considerations

It is a simple fact of life, particularly in these difficult economic times, that legal services are expensive and that financial considerations will play a significant, if not decisive, role in setting the goal for the engagement and determining an effective strategy for achieving that goal.  For example, litigators by nature have an inherent desire to “win” the case.  But if “winning” a lawsuit costs the client more than it can afford or, worse, more than is obtained in a “victory,” then the result for the client is not a “win” at all.  Attorneys must be candid with clients regarding the costs of an engagement, and clients must be candid with their attorneys regarding their financial circumstances and ability to pay.  While many clients enter into litigation in “battle mode” believing that they want to move forward as aggressively as they can to “win” the case, that approach will result in large legal bills early in the case.  Arizona litigation clients should also be cognizant of the fact that Arizona’s up-front disclosure requirements are such that discovery expenses are substantially front-loaded in the early part of a litigation matter.

Don’t be Afraid to Ask Questions

The old adage that the only stupid question is the one that goes unasked is particularly true in the context of the attorney-client relationship.  While we attempt to anticipate as many of our clients’ questions as possible, it is still important for our clients to feel comfortable enough to ask any questions they may have.  While your attorneys have the advantage of understanding the legal issues, you (the client) will always have a far better understanding of your personal or business circumstances and those circumstances may be critical in determining the appropriate strategy for your engagement.  We are here to answer your questions and client questions often have a way of leading to critical information that may lead to a better strategy or a change in the ultimate goal.

The Attorney-Client Privilege Exists for a Reason

Remember that essentially anything that you tell your attorneys (with the possible exception of a present intention to commit a felony in the near future) is privileged and confidential, and will not be disclosed under any circumstance.  The reason that the attorney-client privilege exists and is enforced by our courts is that the legal system recognizes that candid, open, and forthright communication between attorney and client is absolutely critical.  In the litigation context, when “bad” facts are disclosed to your attorneys, we can plan around those facts and create a strategy for minimizing any damage to your case that may result from those facts.  On the other hand, withholding “bad” facts from your attorneys is a recipe for disaster as the likely result is that the opposing party will find out about those facts and use them at the most inopportune moment, catching your attorneys off guard. 

On those occasions over the years when I have learned about “bad” facts that were not disclosed to me by my clients, the clients often were “afraid” or “embarrassed” to disclose bad facts because they were afraid that the “bad” facts would be unnecessarily disclosed and hurt their case, or that I would think less of them as a result of my knowledge of the “bad” facts.  As to the first reason, parties in litigation are all required to play by the same set of rules.  We play by those rules and will disclose information that is required to be disclosed.  It is universally true, however, that the failure to disclose required information always turns out worse than making the required disclosure and implementing a strategy to minimize any damage resulting from that disclosure.  With respect to the second concern that I may think less of my client as a result of the disclosure of “bad” facts, my job is to solve my clients’ problems, not to “judge” their actions under difficult circumstances.  Clients should always disclose all pertinent information to their attorneys.