Disclosing Representative Capacity

Disclosing Representative Capacity

Rule 3.9 gives the lawyer two commands, and the first is that the lawyer "shall disclose that the appearance is in a representative capacity."¹ A representative capacity is the status of speaking for a client rather than for oneself. The duty attaches to the appearance itself, so it arises whenever the lawyer addresses a legislative body or agency in a proceeding that meets the conditions described in the previous section.

Courts and rulemaking forums differ in how the representation becomes known. In an adjudicative proceeding, the lawyer enters an appearance before the tribunal, and that formal step makes the representation obvious. A lawyer who argues for or against a proposed rule or policy before a legislative or administrative body has no such ritual. Listeners may not realize that she speaks for someone else, and they may take her for an interested citizen giving her own views.² The disclosure duty fills that gap. It supplies in words the announcement that an entered appearance makes automatically in court.

The gap matters because listeners weigh an argument partly by who is making it. A council that hears a neighbor object to a zoning change learns how residents will be affected. The same objection from a developer's lawyer tells the council about the developer's position. If a lawyer could pass a client's position off as personal opinion, the body would be misled about the source of the argument even if every sentence were true. That is why disclosure stands beside the incorporated candor rule instead of being absorbed by it.³ Truthfulness governs what the lawyer says. Disclosure governs what the body is led to believe about who is saying it.

The two lawyers' statements are equally accurate. The difference lies entirely in what the body knows about the speaker, and that is the only thing the disclosure duty protects. Examinees often see accurate statements and conclude that no violation occurred. In fact, omitting the representative capacity is itself the breach. The opposite error is to carry the duty into a courtroom, where the entered appearance has already done the announcing and Rule 3.9 does not apply.

The text also limits how far the duty can be stated. The second lawyer happens to name her client, which is a natural way to make the capacity plain. But the rule's words command disclosure of the representative capacity itself. They do not say that the lawyer must name the client, and they prescribe neither particular wording nor a particular moment. State the duty as the rule states it, and do not attribute further requirements to it.⁴ Disclosure answers the question of who is speaking. The rule's second command incorporates Rule 3.3(a) through (c) and answers whether what is said is true. The next section takes up that incorporation.