## **Learning Outcomes**

After reading this article, you will be able to identify when the Model Rules apply to lawyers representing clients before legislative or administrative bodies in nonadjudicative proceedings. You will understand the requirements for disclosure of representative capacity, duties of candor, and the limits on conflicts of interest in these settings. You will be prepared to answer MPRE questions on lawyer conduct outside traditional courtrooms.

## **MPRE Syllabus**

For the MPRE, you are required to understand the ethical obligations of lawyers appearing in nonadjudicative proceedings, such as legislative hearings or administrative rulemaking. This article covers:

- The scope of the Model Rules when representing clients before legislative or administrative bodies in nonadjudicative proceedings.
- The requirement to disclose representative capacity.
- Duties of candor and honesty in nonadjudicative settings.
- The application of conflict of interest rules to these proceedings.
- The distinction between adjudicative and nonadjudicative proceedings for ethical purposes.

## **Test Your Knowledge**

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision._

1. When a lawyer represents a client at a legislative committee hearing, what must the lawyer do?
   a) Remain silent unless asked to speak.
   b) Disclose that they are appearing in a representative capacity.
   c) Only disclose their client's name if asked.
   d) Avoid discussing the client's interests.

2. Which of the following is NOT required of a lawyer in a nonadjudicative proceeding?
   a) Disclosure of representative capacity.
   b) Candor regarding material facts.
   c) Compliance with all Model Rules.
   d) Obtaining court approval before appearing.

3. A lawyer is asked to testify before a city council about a proposed ordinance. The lawyer is paid by a private client but does not disclose this. Is the lawyer subject to discipline?
   a) Yes, for failing to disclose representative capacity.
   b) No, because the proceeding is not in court.
   c) No, unless the lawyer testifies falsely.
   d) Yes, for failing to obtain written consent from the client.

4. The Model Rules require a lawyer to avoid conflicts of interest when:
   a) Appearing in court only.
   b) Representing a client in any official hearing or meeting.
   c) Testifying as a private citizen.
   d) Speaking at a public rally.

## **Introduction**

Lawyers often represent clients before legislative bodies or administrative agencies in settings that are not formal court proceedings. These are known as **nonadjudicative proceedings**. The Model Rules impose specific duties on lawyers in these contexts, especially regarding disclosure, candor, and conflicts. Understanding these obligations is essential for the MPRE.

> **Key Term: Nonadjudicative Proceeding**
> A hearing or meeting before a legislative body or administrative agency where evidence or argument is presented, but which does not result in a binding legal judgment by a neutral official.

### Scope of the Rules in Nonadjudicative Proceedings

The Model Rules apply to lawyers representing clients in official hearings or meetings of legislative bodies or administrative agencies when the lawyer or client presents evidence or argument. This includes activities such as testifying at a legislative hearing, submitting comments in rulemaking, or appearing at a public agency meeting.

However, the rules do **not** apply to all interactions with government agencies. For example, they do not cover negotiations with agencies, applications for licenses, or compliance filings like tax returns.

> **Key Term: Representative Capacity**
> Acting on behalf of a client, rather than as a private individual, in a proceeding before a legislative or administrative body.

### Disclosure of Representative Capacity

A lawyer must clearly state that they are appearing in a representative capacity when representing a client in a nonadjudicative proceeding. This allows the body to assess any potential bias and understand the lawyer's role.

Failure to disclose that you are representing a client, especially if you are being compensated, is a violation of the Model Rules and may subject you to discipline.

### Duties of Candor and Honesty

While the strict rules of evidence may not apply, lawyers must still act honestly and must not make false statements of material fact or law. Lawyers may present arguments and evidence, but must not mislead the body or omit information in a way that would be dishonest.

> **Key Term: Candor**
> The duty to be honest and straightforward in statements of fact or law, even outside formal court proceedings.

### Conflicts of Interest

The conflict of interest rules apply in nonadjudicative proceedings just as they do in court. A lawyer must not represent clients with conflicting interests unless the requirements for waiver are met. If a lawyer knows that a client's interests may be materially benefited by a decision in which the lawyer participates (such as in law reform activities), the lawyer must disclose that fact to the body, though the client's identity need not be revealed unless required.

### Application Limits

The special duties described here only apply when the lawyer or client is presenting evidence or argument at an official hearing or meeting. They do not apply to routine bilateral dealings with agencies, such as license applications or compliance filings.

### **Worked Example 1.1**

A lawyer is hired by a business to testify before a state senate committee about a proposed regulation. The lawyer appears and gives testimony supporting the business's position but does not mention that she is being paid by the business.

**Question:** Has the lawyer complied with her ethical duties?

> **Answer:** No. The lawyer is required to disclose that she is appearing in a representative capacity for the business. Failing to do so is a violation of the Model Rules and may result in discipline.

### **Worked Example 1.2**

A lawyer is asked to submit written comments to a federal agency during a rulemaking process. The comments are submitted on the lawyer's letterhead, but the lawyer does not state that the comments are on behalf of a client.

**Question:** Is this sufficient disclosure?

> **Answer:** No. The lawyer must clearly indicate that the comments are submitted in a representative capacity for a client, not as a personal opinion.

### **Exam Warning**

> In nonadjudicative proceedings, the failure to disclose that you are representing a client—even if you believe your testimony is in the public interest—can result in discipline. Always make your representative role clear.

### **Revision Tip**

> When reviewing MPRE questions, check whether the scenario involves a legislative or administrative hearing. If so, ask whether the lawyer disclosed their representative capacity and complied with duties of candor and conflict rules.

## **Summary**

Lawyers representing clients in nonadjudicative proceedings must disclose their representative capacity, act with candor, and avoid conflicts of interest. These requirements apply only when presenting evidence or argument at official hearings or meetings, not in routine agency dealings.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- The Model Rules apply to lawyers representing clients in nonadjudicative proceedings before legislative or administrative bodies.
- Lawyers must disclose when they are appearing in a representative capacity.
- Duties of candor and honesty apply in these settings.
- Conflict of interest rules are fully applicable in nonadjudicative proceedings.
- These requirements do not apply to routine agency interactions like license applications or compliance filings.

## **Key Terms and Concepts**

- Nonadjudicative Proceeding
- Representative Capacity
- Candor

Neutrals, government, and organizations - Lawyer appearing in nonadjudicative proceeding