2.3 Evaluation for Use by Third Persons

(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.

(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

(c) Except as disclosure is authorized in connection with a report of an evaluation, confidences and secrets are otherwise protected by Rule 1.6.


COMMENT

Definition

[1] An evaluation may be performed at the client’s direction or when impliedly authorized in order to carry out the representation. See Rule 1.2. Such an evaluation may be for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender. In some situations, the evaluation may be required by a government agency; for example, an opinion concerning the legality of the securities registered for sale under the securities laws. In other instances, the evaluation may be required by a third person, such as a purchaser of a business.

[2] A legal evaluation should be distinguished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser to analyze a vendor’s title to property does not have a client-lawyer relationship with the vendor. So also, an investigation into a person’s affairs by a government lawyer, or by special counsel employed by the government, is not an evaluation as that term is used in this Rule. The question is whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is retained by that person, the general rules concerning loyalty to client and preservation of confidences and secrets apply, which is not the case if the lawyer is retained by someone else. For this reason, it is essential to identify the person by whom the lawyer is retained. This should be made clear not only to the person under examination, but also to others to whom the results are to be made available.

Duties Owed to Third Person and Client

[3] When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would normally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transaction. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer’s responsibilities to third persons and the duty to disseminate the findings.

Access to and Disclosure of Information

[4] The quality of an evaluation depends on the freedom and extent of the investigation upon which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. Under some circumstances, however, the terms of the evaluation may be limited. For example, certain issues or sources may be categorically excluded, or the scope of search may be limited by time constraints or the noncooperation of persons having relevant information. Any such limitations that are material to the evaluation should be described in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer’s obligations are determined by law, having reference to the terms of the client’s agreement and the surrounding circumstances. In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this Rule. See Rule 4.1.

Obtaining Client’s Informed Consent

[5] Confidences and secrets are protected by Rule 1.6. In many situations, providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose confidences and secrets necessary to carry out the representation. See Rule 1.6(a). Where, however, it is reasonably likely that providing the evaluation will affect the client’s interests materially and adversely, the lawyer must first obtain the client’s consent after the client has been adequately informed concerning the important possible effects on the client’s interests. See Rules 1.6(a) and 1.0(e).

Financial Auditors’ Requests for Information

[6] When a question concerning the legal situation of a client arises at the instance of the client’s financial auditor and the question is referred to the lawyer, the lawyer’s response may be made in accordance with procedures recognized in the legal profession. Such a procedure is set forth in the American Bar Association Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Information, adopted in 1975.


REPORTER’S NOTES:

Model Rule 2.3 (2002) sets forth the approach to be taken by lawyers asked to provide evaluations or render legal opinions to third parties. There is no corresponding provision in the Maine Bar Rules, although Model Rule 2.3 (2002) is in accord with the legal opinion practice that has long been customary in Maine.

Lawyers often provide opinion letters concerning a client for the use of third parties. Commonly, these opinion letters are issued in the context of representing a party or parties to a transaction. Rule 2.3 recognizes that a lawyer’s evaluation (opinion) for the use of third parties is an important part of the representation of his or her own client. The Rule provides guidance as to how to discharge such responsibility.

Rule 2.3(a) corresponds to Rule 1.2’s prescription that a “lawyer may take such action on behalf of the client as impliedly authorized to carry out the representation.” Rule 2.3(c) affirms that unless disclosures of clients’ confidences and secrets are authorized, any confidences and secrets relating to the evaluation are protected by Rule 1.6. The Task Force recommended that Rule 2.3(c) include the phrase “confidences and secrets,” consistent with the recommended formulation in Rule 1.6.

The question of how much investigation a lawyer should conduct before providing a legal opinion is not squarely and thoroughly addressed in Model Rule 2.3. The Task Force noted that lawyers will find guidance with respect to this and related questions in various reports and articles published by the American Bar Association and state bar associations (see e.g., TriBar Opinion Comm., Third Party “Closing” Opinions, 53 Bus. Law 591 (1998); see generally, The RESTATEMENT (THIRD) of the Law Governing Lawyers cmt a. (2000) (“[c]ustom and practice determining the scope of diligence in represented situations is articulated in bar-association reports, treatises and articles”)).