Why Rule 3.9 Exists

Advocacy in Nonadjudicative Proceedings

Why Rule 3.9 Exists

A lawyer who testifies before a legislative committee or at an agency rule-making hearing usually faces no neutral judge, no opposing party ready to correct a misstatement, and no evidence rules to screen what the listeners hear. Model Rule 3.9 supplies standards for that setting. It provides that "[a] lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5."¹ The sentence has three working parts. The trigger requires a legislative body or administrative agency conducting a nonadjudicative proceeding. The disclosure command requires the lawyer to make clear that the appearance is on someone else's behalf. The incorporation command imports three existing advocacy rules by cross-reference. Later sections take each part in turn.

Comment 1 to Rule 3.9 explains the purpose. When a legislative or administrative body acts in a rule-making or policy-making capacity, as a formal decision-making body, the lawyer must "present facts, formulate issues and advance argument" with integrity and in conformity with that forum's rules of procedure. Rule 3.9 achieves this by incorporating the ethical rules on advocacy that suit a nonadjudicative forum.² Without the rule, the honesty of what these bodies hear would rest on each lawyer's private scruples.

The incorporation is selective. From Rule 3.3, the lawyer takes the duties not to make false statements of law or fact and not to present false evidence, but not the provision of Rule 3.3(d) on ex parte relief, which has no application before a legislature or agency. From Rule 3.4, the lawyer takes the duties to allow access to and preservation of evidence, not to falsify evidence or tamper with a witness, and to obey the forum's procedural rules, but not the duties specific to litigation, such as pretrial discovery and statements at trial. Rule 3.5 supplies the duties of impartiality and decorum.³ The rule leaves out the advocate's duties on expediting litigation, extrajudicial statements, the advocate-witness problem, and the special responsibilities of a criminal prosecutor, because those are generally inapposite to legislative and administrative venues. It also leaves out Rule 3.1's ban on frivolous arguments. Professors Rotunda and Dzienkowski explain that omission this way: "in politics, it is standard operating procedure to design arguments that appeal to emotion and may not necessarily follow the rules of logic."⁴ The omitted rules receive fuller treatment in a later section.

The lawyer and the client are the same in both settings, and the standards differ. The forum's function selects the rule set, and Rule 3.9 reaches only nonadjudicative proceedings.⁵ On the bar exam, a question about a lawyer's conduct before a government body should prompt one question first: is the body making rules or policy, or deciding a dispute between parties? If it is making rules or policy, Rule 3.9 governs. If it is deciding a dispute, Rule 3.9 does not.