Model Rule 2.3: Evaluation for Use by Third Persons

When it applies

This arises in transactional practice when a lawyer is asked to provide an opinion letter to a bank, opposing party, or third-party purchaser about the client's legal status or financial condition. On the MPRE, it tests whether students recognize when third-party-directed work crosses into conflict territory requiring client consent or protection of confidences.

What the rule requires

• The lawyer may provide an evaluation for use by someone other than the client if the lawyer reasonably believes making the evaluation is compatible with other aspects of the lawyer-client relationship.
• If the lawyer knows or reasonably should know that the evaluation is likely to materially affect the client's interests adversely, the lawyer must obtain the client's informed consent before proceeding.
• The lawyer must still comply with Rule 1.6 regarding confidentiality of client information unless the client has consented to disclosure as part of authorizing the evaluation.
• The evaluation must be conducted competently and diligently, consistent with the lawyer's general duties under Rules 1.1 and 1.3.
• The lawyer should ensure that undertaking the evaluation does not create an improper conflict of interest under Rule 1.7, such as a significant risk that the representation of the client will be materially limited by the lawyer's own interests or by responsibilities to the third party relying on the evaluation (who is not a client).

Exceptions

• No separate informed-consent requirement applies if the evaluation is not likely to materially affect the client's interests adversely — ordinary authorization to proceed is enough.
• Client consent to the evaluation itself may implicitly authorize necessary disclosure of otherwise confidential information under Rule 1.6, to the extent required to conduct the evaluation.

How the MPRE tests Model Rule 2.3

• Students often confuse this with Rule 1.13 (organizational client) or Rule 2.4 (third-party neutral); Rule 2.3 is specifically about evaluations for use by outsiders, not about representing entities or serving as a mediator.
• MPRE questions test whether students know informed consent is only required when the evaluation may adversely and materially affect the client — not for every third-party evaluation.
• Students may wrongly assume the third party (e.g., the lender) becomes a client of the lawyer; Rule 2.3 does not create an attorney-client relationship with the third party.
• Confidentiality issues under Rule 1.6 can be overlooked; disclosing information to complete the evaluation still requires client consent unless already authorized.