Following is the eighteenth in a series of posts about recent changes to the California Bar Association’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3, which is titled “Advocate.”
As this is a new rule, it is not a revision of a previous rule. CBA’s Rule 3.9 addresses “advocacy in a nonadjudicative proceeding” and is shown below:
Rule 3.9 Advocate in Nonadjudicative Proceedings
A lawyer representing a client before a legislative body or administrative agency in connection with a pending nonadjudicative matter or proceeding shall disclose that the appearance is in a representative capacity, except when the lawyer seeks information from an agency that is available to the public.
As set forth above, this rule explains that whenever he or she appears before a judge or administrative agency in connection with a particular client, the lawyer must make it clear that he or she IS representing the client. In order for this rule to apply, however, the client being represented must be involved with a pending nonadjudicative matter. This means that no final judgment has yet been made on the client’s matter.
Rule 3.9 of the American Bar Association’s (ABA) RPC carries the same title as the CBA’s version of the same rule, and most of the same verbiage. But the ABA’s rule adds that the lawyer “shall conform to the provisions of Rules 3.3(a) through (c) 3.4(a) through(c), and 3.5.” Those rules address candor toward the tribunal, fairness to opposing party and counsel, and the tribunal’s “impartiality and decorum.”
Benefit: Generally speaking, this rule helps protect a client’s legal right to representation by clarifying the attorney’s responsibility to divulge his or her role in representing the client, whether the attorney is appearing before a legislative body or an administrative agency.
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Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Client Rights, Advocate