Incorporated Advocacy Rules

Incorporated Advocacy Rules

Rule 3.9 writes no advocacy code of its own. It tells the lawyer instead to “conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.”¹ The rule works by cross-reference, lifting three standards the lawyer already carries into a courtroom and setting them down in a legislative hearing or an agency rulemaking. Each addresses a different part of the advocate’s job: candor governs what the lawyer tells the body, fairness governs the material the body weighs, and impartiality and decorum govern the process by which the body decides.

These three were chosen because they suit the forum. Rule 3.9 incorporates the advocacy rules that are well suited to a nonadjudicative setting and leaves the rest behind.² A legislative committee or rulemaking agency usually has no neutral judge to police the lawyer, no cross-examination, and no evidence rules to screen what it hears. The rules that travel well are the ones that discipline the lawyer’s own conduct, because they work without courtroom machinery.

The ranges carry the exam points. Rules 3.3 and 3.4 enter only through paragraphs (a) through (c), while Rule 3.5 enters under its own number with no limit. A question asking which advocacy duties bind a lawyer at a rulemaking hearing wants all three rules and their ranges. The subsections below take them in order, beginning with candor.

Candor Under Rule 3.3

The first imported rule governs what the lawyer tells the body. In litigation, Rule 3.3 forbids deceiving a judge. Under Rule 3.9, the same duties run to the legislators or agency members who hear the lawyer’s presentation, because the lawyer must “conform to the provisions of Rules 3.3(a) through (c).”⁴ What carries over is the bar on false statements of law or fact and the bar on presenting false evidence. Paragraph (d), which governs ex parte relief, stays behind because it has no work to do in this setting.⁵

These duties matter most where the other checks are weakest. A policy-making body hears from interested advocates, often with no cross-examination, no neutral fact-finder, and no opponent in the room to answer. It then writes a rule the public must obey. A fabricated statistic or a misstated statute would pass straight into law, and the lawyer who knows the truth is the person best placed to stop it. The rule makes that duty mandatory: the lawyer “shall conform.”⁶

The first three questions turn on what the lawyer actually knows. A hunch that a client’s numbers look inflated is not enough, although a lawyer cannot manufacture ignorance by refusing to look. The third question deserves the most attention because it operates after the harm is done. Paragraph (c) extends the duties through the end of the proceeding and applies them even when compliance requires revealing information the lawyer would otherwise keep confidential. Without that override, a client could shield a falsehood simply by confiding the truth to the lawyer, and the body would base its rule on evidence its own advocate knew to be false. Rule 3.3 resolves the conflict in favor of the integrity of the decision. Remedial measures need only be reasonable, so the lawyer may begin by urging the client or witness to correct the record, but disclosure to the body becomes required when nothing less will cure the falsity.

The fourth question has the narrowest reach. The adverse-authority duty arises when the lawyer makes legal argument, as when explaining to a committee what a statute or decision means for a proposed measure. It covers only authority from the controlling jurisdiction that is directly adverse to the client and that no opposing advocate has raised.

The candor duties leave the advocate’s role intact. They reach falsity, so a truthful presentation that stresses favorable evidence stays within them.

The line is crossed when the lawyer’s own submission turns out to be untrue.

Both lawyers advocated hard for a client. What separates them is the truth of what the body was given, and a common exam error is to treat selective emphasis as a candor violation, which it is not. The mirror-image error is to assume that lies are tolerable in a legislative setting because no judge is present or no oath was taken, when the duty attaches to the lawyer’s appearance whatever the formality of the room.

One feature of the full candor rule is deliberately missing. In a tribunal, paragraph (d) requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts, adverse ones included. Rule 3.9 stops at paragraph (c) because that duty belongs to forms of ex parte relief that do not arise before legislative and administrative bodies.⁷ That is why the retail association’s lawyer in the first scene above was not required to volunteer every competing theory. The later section on rules left out of Rule 3.9 returns to the exclusion and its reasons.

Fairness Under Rule 3.4

The fairness rule is the second of the three, and the cross-reference brings in its first three paragraphs: “Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.”⁹ Candor governs what the lawyer tells the body. Rule 3.4 governs how the lawyer handles the material the body will rely on, which comes down to three things: access to and preservation of evidence, the genuineness of evidence and testimony, and obedience to the forum’s procedural rules.¹⁰

A rulemaking or policy-making body decides on the record participants give it. That record is built without a judge who can order production, without discovery to pull documents from a reluctant participant, and often without anyone placed to notice a falsified exhibit. A lawyer who hides material, shades testimony, or ignores the forum’s procedures skews a record the body will treat as complete, and the participants who follow the rules pay for it. Each of the three paragraphs guards a different part of that process: paragraph (a) protects the record’s completeness, paragraph (b) its truthfulness, and paragraph (c) the orderliness of the procedure that builds it.

Paragraph (a) forbids a lawyer to unlawfully obstruct another party’s access to evidence, and to unlawfully alter, destroy, or conceal a document or other material with potential evidentiary value. It also forbids counseling or assisting anyone else to do either.¹¹ The word unlawfully sets the scope. A lawyer who withholds material because a valid legal protection covers it has obstructed nothing unlawfully, while a lawyer who makes material disappear to keep it from the decisionmaker has done what the paragraph targets. The clause on counseling and assisting closes the obvious workaround, since a lawyer could otherwise leave the deletion to a client’s employee and keep clean hands.

Paragraph (b) deals with evidence at its source. It bars a lawyer from falsifying evidence, from counseling or assisting a witness to testify falsely, and from offering a witness an inducement the law prohibits.¹² The paragraph overlaps with candor but reaches earlier in time. Rule 3.3 is triggered when the lawyer offers evidence the lawyer knows is false, whereas paragraph (b) is triggered by manufacturing or shaping the falsehood, which can happen in a preparation session long before anyone speaks to the body. The timing matters because a legislative committee or rulemaking agency usually has no means of detecting that a witness’s account was scripted, so the prohibition has to operate on the lawyer before the testimony is given.

Paragraph (c) answers a different question: what may a lawyer do when a procedural requirement of the forum seems wrong? The paragraph forbids a lawyer to knowingly disobey an obligation under the rules of the forum, with one exception for an open refusal based on an assertion that no valid obligation exists.¹³ In a legislative or administrative proceeding, those rules are the forum’s own procedures, and the lawyer must obey them as the forum directs.¹⁴ The exception exists because a lawyer who believes a requirement is invalid needs a legitimate way to test it. Saying so openly gives the forum a chance to answer the objection. Quiet disregard gives the forum no such chance and leaves the participants who complied at a disadvantage they never knew about. The exception protects how the lawyer refuses and says nothing about whether the forum will agree.

What separates a permitted refusal from a violation of paragraph (c), then, is whether the lawyer refused in the open and gave the ground.

Only the first three paragraphs of Rule 3.4 come across. The rest of that rule contains duties tied to litigation, such as those governing pretrial discovery and appropriate statements at trial, and Rule 3.9 leaves them behind because a rulemaking hearing has no discovery phase and no trial.¹⁵ A complete exam answer names the three imported duties (preserve evidence and allow access to it, do not falsify evidence or tamper with a witness, obey the forum’s procedures or refuse openly) and does not attribute the litigation-specific provisions to a lawyer before a legislature or agency.

Impartiality and Decorum Under Rule 3.5

Rule 3.5 is the third borrowed rule, and it comes in whole, because the cross-reference directs the lawyer to conform to “Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5” and attaches no subsection limit to the last item.¹⁷ Candor governs what the body is told, and fairness governs the material the body relies on. Rule 3.5 governs the lawyer’s relationship to the people who decide and to the room in which they decide. Rule 3.9 incorporates it so that the lawyer refrains from improper influences on the decisionmaker and from disruption of the proceedings.¹⁸ Three commands follow: the lawyer must not seek to influence the decisionmaker by means the law prohibits, must not communicate ex parte with the decisionmaker except as the law allows, and must not disrupt the proceeding.¹⁹

The reason lies in what a policy-making body is supposed to do with what it receives. A legislature or agency is expected to decide on the merits, using arguments and evidence that participants present in the open, and the public record shows everyone else what the body relied on. If a lawyer could win a vote with a gift or a favor, the outcome would follow whoever offered the most, and participants who would not pay would find their openly made arguments beside the point. If a lawyer could shout down other speakers, the body would hear only the loudest voice. The first two commands therefore protect the decisionmaker’s independence, and the third protects the forum’s ability to function for everyone who came to be heard.

The first command turns on the word prohibited. Rule 3.5 draws up no list of forbidden inducements of its own. It defers to whatever other law prohibits, such as bribery and gift-limit laws, so a lawyer who tries to win a decision with a gift or favor the law forbids has committed an ethics violation as well as a legal one. The rule reaches the attempt, since it forbids seeking to influence, and it does not wait for the decisionmaker to accept.

Persuasion by argument and evidence offered in the open is the ordinary currency of a policy forum, and the rule leaves it alone. A policy body exists to hear competing views, and Rule 3.9 omits the frivolous-argument rule precisely because arguments in politics often appeal to emotion and do not follow the rules of logic a court expects.²⁰ Intensity of feeling is therefore never the test. The questions are what means the lawyer used to persuade and whether the proceeding could still go forward.

The second command concerns private contact. An ex parte communication is a communication with the decisionmaker about the matter, made without the knowledge or participation of the others who have an interest in it, and the harm is that the decisionmaker hears one side with no chance for anyone to answer. Rule 3.5 forbids the lawyer to communicate ex parte with the decisionmaker except as the law allows, so the rule defers to other law on when private contact is permitted.²¹ That deference explains why one rule produces different results in different settings. When an agency acts as a neutral adjudicator in a contested case, the law generally bars private contact with the person deciding, because the decision binds a particular party on the strength of the hearing record. A body acting that way is a tribunal, and the later section on bodies acting as tribunals takes up how the full rules then apply. A body making rules or policy is built to take in views from interested people, and the law governing it may authorize contacts that an adjudicator could never receive.

The detailed rules on private contact with legislators come from law outside the professional-conduct rules. An exam answer should therefore rely on the limit for contact the law authorizes and should not invent a flat ban on private conversations with lawmakers, which the rule does not contain. The opposite error is to carry the lenient legislative treatment into a contested adjudication, where the same phone call is a violation.

The third command forbids disrupting the proceeding. A hearing is a shared forum with limited time and many participants. A lawyer who keeps the hearing from continuing takes the opportunity to be heard away from everyone else, and the body loses the orderly record it needs. The prohibition targets obstruction of the process and leaves forceful argument untouched.

The two scenes involve equally strong feeling and the same client interest. The first lawyer used the hearing for its purpose, and the second lawyer prevented the hearing from happening.

The second and fourth questions do most of the work on exam facts, because they decide whether a private conversation is a violation. The first and third usually resolve quickly once the lawyer’s means and the effect on the hearing are identified.