When Rule 3.9 Applies

When Rule 3.9 Applies

Rule 3.9 applies when four facts line up, and the rule's own words tell you which to check: a lawyer "representing a client before a legislative body or administrative agency in a nonadjudicative proceeding."¹ The audience must be a legislature or an agency. The body must be acting nonadjudicatively. The lawyer must be advocating before it. And the lawyer must be doing so for a client. A failure on any one fact takes the appearance outside the rule.

The first two facts describe what the body is doing. A legislative committee weighing a bill and an agency drafting a regulation each act as a formal decision-making body in a rule-making or policy-making capacity. A lawyer who appears before such a body must present facts, formulate issues, and advance argument with integrity and in conformity with that forum's rules of procedure.² The contrast is adjudication. A lawyer's representation in an adjudicative proceeding is obvious because the appearance is entered before a tribunal, and Rule 3.9 does not govern that setting; the section on where Rule 3.9 stops returns to it.³ A rule-making or policy proceeding ordinarily produces a general rule for many people and decides no one's rights in a particular matter, so the body is not acting like a court. Because a single legislature or agency can act in either capacity, the name of the forum settles nothing. What the body is doing in the proceeding does.

The third fact is that the lawyer advocates before the body. Rule 3.9 polices what an advocate tells a government body that will act on it. It therefore attaches when a lawyer testifies before a legislative committee, comments at an agency rulemaking hearing, or argues at a city council meeting on a proposed ordinance. Each is an occasion for presenting facts, formulating issues, or advancing argument to a body that will decide.⁴ Lobbying follows the same logic. A lawyer who lobbies a legislative body or agency for a client carries the profession's standards even though nonlawyers may lobby without them.⁵

The fourth fact is that the lawyer speaks for a client. A lawyer who tells the city council what he thinks of a proposed zoning change, speaking as a homeowner with no client behind the words, represents no one, and the rule's trigger is not met. Listeners cannot always tell the difference. A lawyer arguing for or against a proposed rule may be taken for an interested citizen giving personal views, not someone speaking for another.⁶ That gap in what the audience understands is why Rule 3.9 imposes a disclosure duty on lawyers who do represent a client, and the next section develops it.

A lawyer who clears all four steps owes the disclosure duty and the three imported advocacy rules. A lawyer who fails any step is outside Rule 3.9 but remains subject to the rest of the professional conduct rules. When an exam stem places a lawyer near a government body, it is asking whether these four facts are present, and the fact to look for is advocacy to a rule-making or policy-making body on a client's behalf.

The second scene shows that the rule attaches to the lawyer's advocacy before a rule-making or policy-making body and does not follow the lawyer into every contact with government. The lawyer in that scene still owes the client confidentiality, competence, and freedom from conflicts of interest, duties that attend a lawyer's work for a client before government bodies as elsewhere.⁷ A student who treats every encounter between a lawyer and an agency as a Rule 3.9 problem will impose duties, such as disclosure of representative capacity, in settings the rule does not reach.