Where Rule 3.9 Stops

Rule 3.9 states its own limit in its first line: it reaches only “a lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding.”¹ The rule targets the formal government forums where rules and policies are made, so it does not govern a lawyer's advocacy to a legislative or administrative entity in three other settings.² In the first, the body acts in an adjudicative capacity. In the second, the client conducts a bilateral transaction with an agency. In the third, a government agency investigates the client.³

Each exclusion reads one of the rule's trigger conditions in reverse. The first removes the requirement that the proceeding be nonadjudicative: a body that hears evidence from parties and then issues a binding judgment about a particular matter acts like a court, whatever the name on the building. The second and third turn on setting. Comment 3 confines the rule to an official hearing or meeting at which the lawyer or the client presents evidence or argument, and a negotiation with an agency or a response to an agency's inquiry is a different encounter, even with a government employee on the other side.⁴ Contact with government, standing alone, therefore raises no Rule 3.9 question.

Falling outside Rule 3.9 does not leave a lawyer unregulated, and that point decides which rules an answer should apply. In the first setting, the lawyer answers to the full advocacy rules, a set broader than the three Rule 3.9 borrows. In the other two, the lawyer's duties come from the rules governing dealings with nonlawyers.⁵ Students err in two directions. Some apply Rule 3.9, with its disclosure duty and three imported rules, to every contact between a lawyer and a government office; others conclude that no professional duty reaches a lawyer who falls outside the rule. The sections below take up each boundary, starting with the body that acts as a tribunal, where the lawyer's duties grow heavier instead of lighter.

Bodies Acting as Tribunals

Rule 3.9 covers a lawyer appearing “in a nonadjudicative proceeding,” so a proceeding in which the same body acts as an adjudicator falls outside the rule by its own terms.⁷ The terminology rule says where that proceeding goes instead. Rule 1.0(m) defines “tribunal” to include not only a court but also “a legislative body, administrative agency or other body acting in an adjudicative capacity.”⁸ A body sitting as a tribunal brings in the full advocacy rules: the lawyer must comply with Rules 3.1 through 3.8 in their entirety, not merely the three that Rule 3.9 borrows.⁹ The disclosure command also has nothing left to do, because a lawyer who appears before a tribunal makes the representation obvious by entering an appearance.¹⁰

The same legislature or agency can be a Rule 3.9 audience one day and a tribunal the next, and the test for which it is looks at what the body will do with the presentation it receives. Under Rule 1.0(m), an entity acts in an adjudicative capacity “when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.”¹¹ Each element marks a feature the body shares with a court. A neutral official has no stake and decides on what the participants present. Evidence or argument from a party means identified participants are contesting a matter before that official. A binding judgment directly affecting a party's interests in a particular matter means the decision will compel a specific person or company, as an order to pay a penalty or a license revocation would, while a general rule reaches many people and decides no one's rights in a particular matter.

The line falls there because of what each proceeding puts at stake. Rule 3.9 borrows only the advocacy rules suited to a nonadjudicative forum, and it omits the frivolous-claims rule because political argument often appeals to emotion and does not always follow the rules of logic.¹² A rule-making or policy-making body is deciding what a general rule should say, and no one's rights in a particular matter are on the table. Once a binding judgment will fall on a particular party after a hearing on evidence, the body is doing what a court does, and the reason for the lighter package disappears. The full rules then apply, including the bar on frivolous positions that Rule 3.9 leaves out.

Exam Analysis Steps

Because the definition is a conjunction, test a fact pattern against it element by element before choosing an ethics rule:

Ask whether the person who will decide is a neutral official, such as a hearing officer, rather than a body collecting views to shape a policy.
Ask whether the decision will follow evidence or legal argument presented by a party or parties in a matter between identified participants.
Ask whether the decision will be a binding legal judgment, such as an order or a ruling, rather than a recommendation or a general rule.
Ask whether that judgment will directly affect a party's interests in a particular matter, such as one respondent's license or one company's alleged violation.
If every answer is yes, treat the body as a tribunal and apply Rules 3.1 through 3.8; if any answer is no, the body is not a tribunal, and the Rule 3.9 trigger conditions are the next thing to test.

An exam stem that sets a lawyer before a state nursing board and asks whether an unsupported legal argument is improper is really asking which of the board's two functions is on the calendar.

Hypothetical Illustration

At a public hearing on a proposed rule changing continuing-education requirements for every nurse in the state, a lawyer for a nurses' association argues, as a matter of policy, for a standard that existing law does not support. The board will issue a general rule, and no one's license is being decided. Rule 3.9 governs and contains no frivolous-claims rule, so the argument violates no incorporated duty, provided the lawyer states no falsehood.

A week later the same board convenes a hearing on whether to revoke one nurse's license. A hearing officer will weigh the evidence and issue a binding order against that nurse. The nurse's lawyer asserts a defense the lawyer knows has no basis in law or fact. The board is now acting as a tribunal, Rule 3.1 applies along with the rest of Rules 3.1 through 3.8, and the assertion is a violation.

The agency and the subject matter stay the same across the two scenes, and the board's function changes the answer. The contrast reaches private contact as well. A rule-making body is built to take in views from interested people, so the law governing it may authorize meetings that would be forbidden elsewhere. Once the body is a tribunal, Rule 3.5 applies of its own force, and its bar on ex parte communication with the decisionmaker, except as the law allows, generally forecloses a private call to the official who will decide the case, because that decision will bind a particular party on the strength of the hearing record.¹³

The definition looks at what the body will do with the record, so the trappings of the proceeding do not settle the question. A rule-making hearing can have a transcript, sworn witnesses, and a formal agenda and remain nonadjudicative, because its product is a general rule. A small hearing with one respondent and one examiner is adjudicative if the examiner will issue a binding order against that respondent. Students who classify a proceeding by its formality, or by the name of the agency, apply Rule 3.9 where the full advocacy rules govern and lose the heavier duties. The next subsection turns to a lawyer's dealings with an agency in which no body is deciding anything at all.

Bilateral Transactions With Agencies

A lawyer who deals with an agency across a bargaining table is not “representing a client before a legislative body or administrative agency in a nonadjudicative proceeding,” and Rule 3.9 therefore stays out of the exchange.¹⁵ Comment 3 draws the line by confining the rule to “an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer's client is presenting evidence or argument.”¹⁶ It puts outside the rule a negotiation or other bilateral transaction with an agency, an application for a license or other privilege, and a client's compliance with a reporting requirement such as filing an income tax return.¹⁷ Each of these puts a lawyer in contact with a government office, yet none involves a body hearing evidence or argument at an official session, so the setting condition fails and the rule's duties never attach.

The reason appears when you ask what Rule 3.9's duties protect. The disclosure command exists because a lawyer arguing for or against a proposed rule may be taken for an interested citizen speaking personally, and the imported candor, fairness, and impartiality rules exist because a policy-making body relies on what advocates present to it.¹⁸ Neither concern describes a negotiation. A contracting officer or licensing official who bargains with the client's lawyer knows the lawyer speaks for the client, since that is why the two are talking, and the official protects the government's own position as the other party to the deal instead of collecting views to shape a general rule. The government is a counterparty in that exchange, and the fitting rules are the ones that govern how a lawyer treats a counterparty. Rule 3.9's duties would also misfit the setting, because they are built for a body that decides on what advocates present in an official session, whereas a negotiation is a largely private exchange between the lawyer and the official.

Falling outside Rule 3.9 leaves the lawyer governed by a different set of rules. Comment 3 says the lawyer's duties in these matters are those prescribed by the rules on dealing with nonlawyers, Rules 4.1 through 4.4.¹⁹ Those rules cover truthfulness in statements to others (Rule 4.1), communication with a person represented by counsel (Rule 4.2), dealing with an unrepresented person (Rule 4.3), and respect for the rights of third persons (Rule 4.4). A lawyer who knowingly misstates a material fact to the contracting officer therefore violates Rule 4.1, so the absence of Rule 3.9 gives no license to mislead the government.

An exam stem that places a lawyer in front of an agency official asks one question: is anyone presenting evidence or argument at an official hearing or meeting? A lawyer who prepares and files a client's tax return meets a reporting requirement, and no one hears argument about the filing, so Rule 3.9 stays out of it.²⁰ The same reasoning governs a negotiation, as the two scenes below show.

Hypothetical Illustration

A lawyer for a shipbuilder negotiates price and delivery terms with an agency's contracting officer. The two trade offers by telephone and email, no hearing is scheduled, and the shipbuilder is bargaining for a contract. This is a bilateral transaction, so Rule 3.9 does not govern, and the lawyer's duties come from Rules 4.1 through 4.4. If the lawyer tells the officer that the shipyard has finished a safety certification it has not, the breach is of Rule 4.1.

Later, the same lawyer appears at the agency's public hearing on a proposed procurement regulation and argues for the shipbuilders' trade association. The agency is acting in a policy-making capacity at an official hearing where argument is presented, so Rule 3.9 governs. The lawyer must disclose that the appearance is in a representative capacity and conform to the three imported advocacy rules.

The agency and the subject matter are the same in both scenes. What moves the answer is whether the lawyer bargains with the government as the other side or addresses a body that will act on what it hears.

Government Investigations

A lawyer whose client is under investigation by a government agency is not “representing a client before a legislative body or administrative agency in a nonadjudicative proceeding,” and Rule 3.9 does not reach that work.²² Comment 3 says so expressly: the rule does not apply to representing a client in connection with an investigation or examination of the client's affairs by government investigators or examiners.²³ This is the third setting, after the body acting as a tribunal and the bilateral transaction, in which a lawyer deals with government and Rule 3.9 stays out of the way.

The exclusion follows from what an investigation is. Agency staff conduct it to learn whether this client has complied with the law, so the inquiry looks at one client's own affairs, and whatever the agency eventually does with the answers will be directed at that client. Nobody presents evidence or argument to a body deciding what a general rule should say, so the setting condition Comment 3 attaches to the rule, an official hearing or meeting at which evidence or argument is presented, is missing.²⁴ The two concerns behind Rule 3.9's duties are missing as well. The disclosure command exists because a lawyer arguing for or against a proposed rule may be mistaken for an interested citizen giving personal views, and the imported candor, fairness, and impartiality rules exist because a policy-making body relies on what advocates tell it when it writes a rule for the public.²⁵ Investigators who deal with a lawyer about a client's compliance know the lawyer speaks for the client, since that is why the two are in contact. They are gathering facts about one client, and they are not relying on an advocate's presentation to set policy.

Falling outside Rule 3.9 puts the lawyer under a different set of rules. In an investigation, the lawyer's duties are those prescribed by the rules governing dealings with nonlawyers.²⁶ A lawyer who knowingly tells an investigator that the client completed a compliance review it never performed therefore answers under Rule 4.1, which bars knowingly false statements of material fact to third persons, and the absence of Rule 3.9 gives no license to mislead the agency. The classification can also change as events develop. If the inquiry ripens into a contested enforcement proceeding in which a neutral official will, after hearing evidence from the parties, issue a binding judgment about the client, the agency acts as a tribunal, and the full advocacy rules in Rules 3.1 through 3.8 apply, as the discussion of bodies acting as tribunals showed.²⁷

An exam stem that has a lawyer answering a regulator's questions about a client's filings, and then asks whether the lawyer had to disclose a representative capacity under Rule 3.9, tests this boundary. The answer turns on whether the agency is examining one client or collecting views to make a rule.

Hypothetical Illustration

A lawyer represents a brokerage firm that a securities regulator is examining for possible reporting violations. Over several weeks the lawyer answers the examiners' questions and produces documents at their request. The examiners are looking into this firm's compliance, no body is receiving evidence or argument in order to make a rule, and Rule 3.9 does not govern. The lawyer's duties toward the examiners come from the rules on dealing with nonlawyers.

When the regulator later holds a public hearing on a proposed reporting rule that would cover every brokerage, the lawyer speaks there for an industry group. The agency is now making policy at an official hearing where argument is presented, so Rule 3.9 applies. The lawyer must disclose that the appearance is in a representative capacity and conform to the imported candor, fairness, and impartiality rules.

The agency and the reporting subject are the same in both paragraphs, and only the agency's function changed: inquiry into one firm in the first, rule-making for an entire industry in the second. Students go wrong in two directions here. Seeing an administrative agency and a lawyer for a client, some apply Rule 3.9 and its disclosure command to an investigation, where the examiners already know whom the lawyer represents. Others learn that Rule 3.9 does not apply and conclude that no professional duty of honesty reaches the lawyer's dealings with investigators, which overlooks the rules on dealing with nonlawyers.