ER 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 ERs 3.3(a) through (c), 3.4(a) through (c), and 3.5.

Comment

[1] In representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues and advance argument in the matters under consideration.  The decision-making body, like a court, 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 ERs 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.  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] 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.  Representation in such matters is governed by ERs 4.1 through 4.4.