Also known as: non-adjudicative
Written by attorneys · grounded in primary & secondary sources — see below
A proceeding before a legislative body or administrative agency acting in a rulemaking or policymaking capacity rather than resolving the rights of specific parties. The designation triggers duties of representative disclosure and candor under the rules governing lawyer advocacy.
Rina appears at a public hearing before the State Environmental Council on behalf of MetroWaste to support a landfill expansion. She presents a consultant's report but never states that she represents the company, allowing council members to treat her as an independent expert. The council relies on her presentation when evaluating the application.
Tom testifies at a rulemaking hearing held by the Federal Trade Commission on proposed advertising restrictions. He submits data favoring his client but does not disclose the representation, so commissioners treat the submission as neutral public comment. The agency later cites the data in its final rule.
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The lawyer must disclose that the appearance is in a representative capacity. The lawyer must also conform to the candor, fairness, and decorum standards incorporated from Rules 3.3(a)-(c), 3.4(a)-(c), and 3.5.
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Yes. The rule requires an affirmative disclosure of representative capacity at the outset so that the body understands the lawyer speaks as an advocate rather than a neutral expert or citizen. Prior knowledge by some members or later references to the client do not cure the initial omission.
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No. The lawyer must avoid presenting materially misleading factual material. Knowingly relying on statistics that exclude known adverse incidents violates the incorporated duty of candor even though the hearing lacks formal evidentiary rules.
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No. Rule 3.9 expressly extends the core duties of candor and fairness to lawyers representing clients before legislative and administrative bodies in nonadjudicative settings precisely because those bodies lack the procedural safeguards of adjudication.
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