Rules Left Out of Rule 3.9

Rules Left Out of Rule 3.9

Rule 3.9 reaches an advocate through one sentence: the lawyer “shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.”¹ A cross-reference carries only what it names. Any advocacy rule or paragraph missing from that sentence stays outside the hearing room, and exam questions exploit the gap by describing a litigation duty and asking whether it follows the lawyer to a legislature or agency.

The omissions have two sources. Some rules are built around the machinery of a lawsuit and have nothing to attach to in a rulemaking hearing. Others give way to the character of political advocacy, where arguments are shaped and judged by standards no court would apply. In each case the drafters treated the rule as generally inapposite to nonadjudicative legislative and administrative venues.² Two omissions are cut from inside rules that Rule 3.9 otherwise borrows, which is why the cross-reference gives paragraph ranges for Rules 3.3 and 3.4 and does not name those rules whole.

Each omission has its own reason, and the reason lets you predict the result on facts the text never mentions. The subsections below take them in turn, beginning with the frivolous-claims rule.

No Frivolous-Claims Rule

Rule 3.1, the litigation rule against frivolous legal arguments, appears nowhere in Rule 3.9’s cross-reference, so it does not bind a lawyer before a legislature or agency.³ The omission is deliberate. In politics, arguments are routinely designed to appeal to emotion and need not follow the rules of logic.⁴

Rule 3.1 asks whether a position has a basis in law and fact. That is a legal-merit test built for a forum where a judge applies existing law to a dispute between parties. A legislature or rulemaking agency is deciding what the law should be. It hears arguments about cost, fairness, who will gain or lose, and what the public wants. A lawyer who urges a body to change the law is, by definition, asking it to adopt a position that current law does not support, so a merit screen would punish the very request the forum exists to receive.

The omission removes the merit screen and leaves the truthfulness requirement in place. Rule 3.3(a) through (c) comes into the proceeding, so the lawyer may make a weak argument but may not make a false statement of fact or law or present false evidence.⁵ The two differ in what they assert. A policy argument, however thin, claims only that the body ought to act, and the body can weigh that claim for itself. A statement about what a court decided or what a statute provides claims something checkable, and the body may rely on it without checking.

Both lawyers pressed hard for a client, and neither had strong legal support for the request. What separates them is whether any statement to the body was false. An answer that notices the missing Rule 3.1 and concludes that anything goes at a hearing overlooks the imported candor rule. An answer that sees a thin or emotional argument and invents a violation imports a rule the cross-reference does not name. The correct inquiry is whether the lawyer misstated fact or law, offered false evidence, or breached another incorporated duty. The persuasiveness or legal pedigree of the argument is not part of it. The next subsection takes up a second omission, which is carved out of Rule 3.3 itself.

No Ex Parte Disclosure Duty

Rule 3.9 incorporates Rule 3.3(a) through (c) and stops one paragraph short of the end of the candor rule.⁷ The excluded paragraph, Rule 3.3(d), governs forms of ex parte relief that do not arise in legislative or administrative settings.⁸ In court, it requires a lawyer in an ex parte proceeding to tell the tribunal all material facts known to the lawyer that will enable it to decide on an informed basis, whether or not the facts help the client. An ex parte proceeding is one in which only a single side appears before the decisionmaker, as when a judge hears an application for an emergency restraining order while the person to be restrained is absent.

The duty is easiest to understand as a substitute for something missing. A court ordinarily rules after hearing both sides, and an opponent can point out omitted facts, contradict a one-sided account, and test the evidence. On an ex parte application that check is gone. The person most likely to supply the adverse facts has no chance to speak, and the order may bind that person on a record only the applicant built. Paragraph (d) moves the opponent’s job to the applicant’s lawyer, who must put the adverse material before the judge because no one else will.

A legislative or rulemaking hearing lacks that condition. It is open to interested participants, who may appear, submit data, and answer what others have said, and the body is setting a general rule for many people instead of granting relief against one absent person. No empty chair exists for the lawyer’s disclosure to fill. The body also knows that advocates present one side, and Rule 3.9’s separate duty to disclose representative capacity tells it that the lawyer speaks for someone else. A compensating duty with no gap to compensate for would add burden without protecting anyone.

An exam stem on this point usually asks whether a lawyer who leaves out an unhelpful fact has breached a duty, and the answer depends on the forum.

The omission removes only the duty to volunteer adverse facts. Paragraphs (a) through (c) still bind the lawyer. A half-truth that amounts to a false statement of fact remains forbidden, so does offering evidence the lawyer knows to be false, and the paragraph (a) duty to disclose directly adverse controlling legal authority continues to apply.⁹ Adverse authority and adverse facts are different things: the first stays among the lawyer’s duties and the second does not. Two errors follow from missing that line. A student who reads the omission as permission to mislead a legislature has forgotten that the candor duties in paragraphs (a) through (c) come in whole. A student who carries the paragraph (d) duty into a rulemaking hearing has imposed a requirement the cross-reference does not name. The forum still selects the rule set, and a body that acts as an adjudicator in an ex parte matter is a tribunal, where the full advocacy rules govern and Rule 3.9 does not. The later section on bodies acting as tribunals develops that boundary.

Litigation-Specific Rules

Much of what Rule 3.9’s cross-reference leaves out is the group of advocacy duties built around a lawsuit: the rules on expediting litigation (Rule 3.2), on extrajudicial statements (Rule 3.6), on the lawyer who is also a witness (Rule 3.7), and on the special responsibilities of a prosecutor (Rule 3.8).¹¹ The parts of Rule 3.4 that deal with pretrial discovery and statements at trial are omitted as well, because the cross-reference to Rule 3.4 ends at paragraph (c).¹² All of these duties are generally inapposite to nonadjudicative legislative and administrative venues.¹³

The reason appears when each omitted duty is matched with the feature of litigation it assumes. Each presupposes something a lawsuit supplies and a rulemaking or policy hearing lacks:

• The expedition rule presupposes a case on a docket, where one side’s delay costs the other something, and a hearing on a bill or proposed regulation has no docket to speed up.
• The extrajudicial-statements rule presupposes an adjudicative proceeding whose judge or jury could be swayed by publicity, and a policy hearing has no verdict at risk.
• The advocate-witness rule presupposes a trial at which a fact-finder must keep the advocate’s argument separate from sworn evidence, and that line blurs when one person supplies both.
• The prosecutor’s special responsibilities presuppose a criminal charge and an accused, and a hearing on a proposed statute charges no one.
• The litigation-specific parts of Rule 3.4 presuppose a discovery process and a trial, and neither exists before a legislative committee or a rulemaking agency.

A duty placed in a setting with none of these features has nothing to operate on. A lawyer cannot expedite a lawsuit that does not exist or protect a jury no one is empaneling. The rules Rule 3.9 does import work differently, because they regulate the lawyer’s own honesty, handling of evidence, and conduct toward decisionmakers, and those obligations function without courtroom machinery.

That pattern gives a working test for unfamiliar facts. When a stem describes a duty drawn from the litigation rules, ask what the duty attaches to. If it depends on a trial, on discovery, or on a neutral adjudicator ruling on a dispute, Rule 3.9 does not carry it over. The test explains why the list reads as it does, but the text of the cross-reference controls, so the final check is whether the duty belongs to one of the three named rules.

A common stem has a lawyer testify to a committee about a client’s compliance history that the lawyer knows firsthand and asks whether the lawyer has breached the advocate-witness rule.

The lawyer’s knowledge and the client are the same in both scenes. Only the forum changes. A committee hearing has no trial, so a trial-specific duty has nothing to attach to, while a courtroom is where that duty was written to operate.

Two cautions follow. First, omission from Rule 3.9 means only that a duty is not imported into the hearing. A lawyer who is also litigating a matter remains subject to the litigation rules in that matter, whatever Rule 3.9 says about the hearing room. Second, the omissions do not loosen what the lawyer owes the legislative body. The lawyer who testifies about the compliance history must still give an accurate account, must not offer evidence known to be false, and must disclose that the appearance is in a representative capacity.¹⁴ Students therefore err in two directions: they carry trial duties into a hearing, or they treat the missing rules as proof that nothing constrains a lawyer before a legislature or agency.