Rule 32:3.9 Advocate in Nonadjudicative Proceedings

[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. In all such appearances the lawyer shall identify the client if identification of the client is not prohibited by law. It is not improper, however, for a lawyer to seek from an agency information available to the public without identifying a client. See rules 32:3.3(a)-(c), 32:3.4(a)-(c), and 32:3.5.

[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 rules 32:4.1 through 32:4.4.

[4] A lawyer representing a client before a governmental body in a nonadjudicative proceeding is engaged in the practice of law, even if such undertakings could also be engaged in by nonlawyers. Accordingly, a client who employs a lawyer to represent that client in lobbying or other advocacy before governmental bodies is entitled to assume that the lawyer will do so pursuant to the lawyer’s professional obligations under these rules, specifically including those provisions concerning confidentiality, competence, and conflicts of interest.