Duties Owed to the Client

Duties Owed to the Client

Every command in Rule 3.9 runs toward the governmental body. The lawyer must disclose that the appearance is in a representative capacity and must conform to the candor, fairness, and impartiality rules the provision incorporates. Each of those duties governs what the lawyer tells the body, how the lawyer treats the material the body relies on, or how the lawyer deals with the people who decide.¹ The rule says nothing about what the lawyer owes the person who hired the lawyer. That silence reflects the rule's subject and suspends no other obligation. A lawyer who stands before a committee is still someone's lawyer, and the ethical duties of that relationship continue while the lawyer performs the Rule 3.9 duties.²

The client duties follow the lawyer into the legislature because the work itself is the practice of law. When a lawyer offers services with a strong legal flavor, such as lobbying a legislature on legally-permeated matters, the lawyer is likely practicing law even though nonlawyers may also perform those activities.³ A lawyer who lobbies before a legislative body or agency is therefore bound by the higher professional standards that apply to lawyers. A nonlawyer lobbyist working for the same client is not. The standards that matter most to the client are confidentiality, competence, and the avoidance of conflicts of interest.⁴

The reason shows in what the client hands over. To get useful advice about a bill, the client discloses its strategy, the weak points in its position, and facts that bear on the bill's legal effect. It relies on the lawyer to read the statute correctly and to pursue the client's interest without a competing loyalty. If the label of lobbyist stripped those duties away, a client who chose a lawyer for legislative work would get less protection than the same client gets in a lawsuit, although the information shared and the trust placed are identical.

The bill, the client, and the divided loyalty are identical in both scenes, yet the professional rules reach only the first lobbyist, because only he is a lawyer practicing law. The same reasoning covers competence, which requires the legal analysis that a legally-permeated bill demands, and confidentiality, which protects what the client confides during the lobbying.

The client duties and the Rule 3.9 duties operate together, and they meet at one point. Confidentiality is the lawyer's default toward everything the client shares. But Rule 3.9 incorporates Rule 3.3(a) through (c), and, as the earlier discussion of candor explained, the remedial duty in paragraph (c) can require the lawyer to disclose to the body information that would otherwise stay confidential.⁵ The trigger is narrow: the lawyer's own presentation, or evidence offered through the client or a witness, has become materially false. A rule-making body writes its rule from what advocates give it, and a confidentiality that could shelter a known falsehood would let a client turn its lawyer's silence into a way of deceiving the body. Everything else the client has shared, including strategy and weaknesses in its position, stays protected. The logic also runs the other way: because the rule says the lawyer "shall conform" to the incorporated duties, a client's instruction cannot excuse a breach of them.⁶

Two errors recur on exam facts. The first reads Rule 3.9, sees that it speaks only of duties toward the body, and concludes that a lawyer-lobbyist owes the client nothing beyond candor. In fact the lawyer owes confidentiality, competence, and conflict-free representation, as in any other engagement. The second assumes that every lobbyist is held to these standards and treats a nonlawyer's conduct as an ethics violation. In fact the professional standards bind the lawyer because the lawyer is practicing law.