ER 3.9 Advocate in Nonadjudicative Proceedings
The Standard
The purpose of ER 3.9 is to preserve the integrity of valid legal processes; to permit a decision-making body to rely on the integrity of submissions made to it; and to preserve expectation that lawyers will treat legislature and administrative agencies that deal with them as they would deal with courts.
The Limitation
Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court, yet the ethical rules only apply to lawyers. This may subject lawyers to higher standards in these cases than laypersons.
FAQs
Compliance with and conformance to: ER 3.3(a) through (c), Candor to the Tribunal; ER 3.4(a) through (c), Fairness to Opposing Party and Counsel; and ER 3.5, Impartiality and Decorum of the Tribunal.
As one commentator put it: “in politics, it is standard operating procedure to design arguments that appeal to emotion and may not necessarily follow the rules of logic.” Rotuna and Dzienkowski, Legal Ethics – The Lawyer’s Deskbook on Professional Responsibility §3.9-3.
Best Practices
- Preamble
- Client-Lawyer Relationship
- Counselor
- Advocate
- Transactions with Persons Other than Clients
- Law Firms and Associations
- Information about Legal Services
- Maintaining the Integrity of the Profession
- ER 1.1 Competence
- ER 1.2 Scope of Representation
- ER 1.3 Diligence
- ER 1.4 Communication
- ER 1.5 Fees
- ER 1.6 Confidentiality of Information
- ERs 1.7 & 1.10 Conflicts of Interest and Screening Tips
- ER 1.8 Conflict of Interest: Current Clients: Specific Rules
- ER 1.9 Duties to Former Clients
- ER 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
- ER 1.13 Organization as Client
- ER 1.14 Client with Diminished Capacity
- ER 1.15 Safekeeping Property
- ER 1.16 Declining or Terminating Representation
- ER 1.18 Duties to Prospective Clients
- ER 2.4 Lawyer Serving as Third-Party Neutral
- ER 3.1 Meritorious Claims and Contentions
- ER 3.3 Candor Toward the Tribunal
- ER 3.4 Fairness to Opposing Party and Counsel
- ER 3.5 Impartiality and Decorum of the Tribunal
- ER 3.6 Trial Publicity
- ER 3.7 Lawyer as Witness
- ER 3.8 Special Responsibilities of a Prosecutor
- ER 3.9 Advocate in Nonadjudicative Proceedings
- ER 3.10 Credible and Material Exculpatory Information about a Convicted Person
- ER 4.1 Truthfulness in Statements to Others
- ER 4.2 Communicating with Person Represented by Counsel
- ER 4.4 Respect for Rights of Others
- ER 5.1 Responsibilities of Lawyers Who Have Ownership Interests or are Managers or Supervisors; ER 5.2 Responsibilities of a Subordinate Lawyer; and ER 5.3 Responsibilities Regarding Nonlawyers
- ER 7.1 Communications Concerning a Lawyer's Services and ER 7.3 Solicitation of New Clients
- ER 8.3 Reporting Professional Misconduct