Consent to Adverse Evaluations

Consent to Adverse Evaluations

Rule 2.3(b) protects the client from the lawyer's own report. When the lawyer knows or reasonably should know that an evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide it unless the client gives informed consent.¹ The compatibility screen in the preceding section is a separate question. This one asks what this report will do to this client. The answer can be unfavorable even when the evaluation fits everything else the lawyer does for that client.

The client gets a vote because the harm comes from the lawyer's own careful work. A title search for a loan opinion can turn up a lien, and the honest letter then carries that news to the lender. The client wanted the letter in order to close the deal and is now hurt by it. Rule 2.3(b) hands the client the decision: whether the evaluation goes forward, knowing what it will cost. Consent is a condition of delivery, so without it the lawyer does not provide the evaluation.

Each part of the trigger screens out a different kind of case. Knows ties the duty to what the lawyer actually foresees. Reasonably should know closes the opposite gap: a lawyer who holds the facts cannot escape the duty by declining to think about what they mean. Likely excludes harm that is merely conceivable. Materially keeps the rule from demanding a consent conversation over every minor unfavorable detail in an otherwise routine letter. Adversely confines the rule to harm, so a letter that helps the client never triggers it.

Because the parts of the trigger do different work, run the rule in the order in which the lawyer's knowledge develops.

On most exam stems, the third step decides the question. That an outsider will receive the letter is usually obvious. Whether the letter carries news that costs the client something is the live issue. Two opposite errors recur. One demands special consent for every letter to an outsider, which turns a routine clean opinion into a formality. The other sends an honest report without asking, on the theory that the lawyer owes candor to the recipient.

The lien moved the answer. The lawyer, the lender, the kind of letter, and the thoroughness of the search were identical in both scenes, and only the finding differed. A report that helps the client, or leaves the client's position untouched, does not trigger the rule. A report that will end the loan does.

The word informed gives the consent its content. A client who says 'send whatever the search shows,' without knowing that the letter will disclose a lien, has agreed to nothing in particular. Before the client decides, the lawyer should explain what the letter will say and what is likely to follow. The lender may refuse, the deal may fail, and the client may prefer to clear the lien or withdraw the request first. The rule's own wording fixes the timing: the lawyer shall not provide the evaluation unless the client consents, so consent comes before delivery and cannot be collected afterward as a courtesy.² If the client refuses, the lawyer does not deliver the evaluation.

Confidentiality supplies the background. The core of attorney-client confidentiality remains robust under the Model Rules. The criminal defendant who confesses past wrongdoing may be assured that the information stays protected, subject to incursion only if the defendant later introduces false evidence or testimony to a tribunal. The business client who asks where the law's limits lie, intending to stay within them, need not fear a breach of the wall of confidentiality.³ Rule 2.3(b) keeps faith with that baseline: the lawyer's findings do not go to an outsider at the client's expense unless the client, informed, agrees.