3.9 Advocate in Nonadjudicative Proceedings

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5, and Rules 4.1 through 4.4. This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer’s client is presenting evidence or argument. It does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as the filing of income-tax returns. Nor does it apply to the representation of a client in connection with an investigation or examination of the client’s affairs conducted by government investigators or examiners.


COMMENT

[1] In representation before bodies acting in a rule-making or policy-making capacity, such as legislatures, municipal councils, and executive and administrative agencies, lawyers present facts, formulate issues and advance argument in the matters under consideration. The decision-making body should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. See Rules 3.3(a) through (c), 3.4(a) through (c) and 3.5.

[2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court or other adjudicative bodies. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

[3] [Reserved]


REPORTER’S NOTES:

Model Rule 3.9 (2002), establishing rules governing attorneys who appear before a legislative body or administrative agency in a nonadjudicative proceeding, has no analog under the Maine Bar Rules which do not distinguish between adjudicative and nonadjudicative proceedings. To address the issue of a lawyer’s obligations in representing a client before a legislative or administrative body, Model Rule 3.9 (2002) establishes an additional rule specific to nonadjudicative proceedings.

Model Rule 3.9 (2002) incorporates by reference the requirements found in Model Rules 3.3, 3.4, 3.5, 4.1, 4.2, 4.3 and 4.4 (other than those that are specific to proceedings before a tribunal). The Task Force thought the more specific approach of Model Rule 3.9 enhances both the clarity and enforceability of a lawyer’s obligation in a nonadjudicative context. The Task Force also thought inclusion of the language found in Model Rule 3.9 Comment [3] in the text of the Rule added clarity. Accordingly, the Task Force recommended adoption of Model Rule 3.9 (2002), with the noted addition.