ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 2.3
Evaluation for Use by Third Persons.
(a) A lawyer may undertake an evaluation of a matter affecting a client for use of someone other than the client if:
(1) The lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client; and
(2) The client consents after consultation.
(b) Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
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ACTEC COMMENTARY ON MRPC 2.3
Rule 2.3 describes the circumstances under which a lawyer may undertake to provide a legal evaluation of a matter for use by nonclients. The Rule and the accompanying Comments are largely permissive--they do not deal expressly with the obligations of a lawyer who undertakes to make such an evaluation, including the responsibilities to third parties that may arise in connection with, or as a result of, making such an evaluation. The latter point is made clear by the Comment to Rule 2.3:
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.
The Comment also notes that, "the general rules concerning loyalty to client and preservation of confidences apply", which makes it essential to identify the person by whom the lawyer is retained. Rule 2.3 is of limited application to the representation of clients in the estate planning and estate administration context--by its terms it only applies if the lawyer undertakes to perform an evaluation of the type described in the Comment.
The Comment to Rule 2.3 also indicates that it applies primarily to the preparation of evaluations such as title reports or opinions required by governmental agencies that will be relied upon by nonclients. Rule 2.3 logically applies to such evaluations regardless of the particular nature of the client or the type of representation involved.
Under Rule 2.3(1) the lawyer may undertake an evaluation only if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. Thus, as noted in the Comment to Rule 2.3, "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."
Evaluations prepared for the use of nonclients are also subject to the requirements of MRPC 4.1 (Truthfulness in Statements to Others). In addition, Rule 3.3 (Candor toward the Tribunal) prohibits a lawyer from presenting to the court any petition, accounting, or other document or evidence that is false or fails to disclose a material fact if disclosure is necessary to avoid assisting a client in a criminal or fraudulent act.
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