Model Rule 3.9: Advocate in Nonadjudicative Proceedings

When it applies

This comes up when a lawyer testifies before a legislative committee, appears at a rulemaking hearing, or otherwise advocates for a client's interests before a body acting in a legislative or rulemaking (not adjudicative) capacity. On the MPRE, it tests whether students know the rule does NOT apply to purely adjudicative administrative proceedings (those are governed directly by 3.3-3.5) and does NOT apply to lawyers giving personal opinions unconnected to client representation.

What the rule requires

• The lawyer must disclose that they are appearing in a representative capacity on behalf of a client, not as a disinterested citizen.
• The lawyer is bound by the candor-toward-the-tribunal duties in Rule 3.3(a)-(c), including prohibitions on false statements and failure to correct known false evidence.
• The lawyer must not obstruct access to evidence, unlawfully alter or destroy evidence, or otherwise violate the fairness-to-opposing-party duties in Rule 3.4(a)-(c).
• The lawyer must comply with the decorum and impartiality requirements of Rule 3.5 (no improper influence on the body, no ex parte contacts prohibited by that body's rules).

Exceptions

• The rule expressly applies only when the legislative or administrative body is acting in a nonadjudicative capacity; adjudicative administrative proceedings are instead governed directly by Rules 3.3-3.5.
• Rule 3.4(d) through (f) and Rule 3.3(d) (the ex parte disclosure duty) are not incorporated; Rule 3.9 imports only Rules 3.3(a)-(c), 3.4(a)-(c), and 3.5.

How the MPRE tests Model Rule 3.9

• Students forget the representative-capacity disclosure requirement, focusing only on the candor/fairness duties.
• Students confuse nonadjudicative legislative/rulemaking testimony with adjudicative administrative hearings, which are covered by 3.3-3.5 directly rather than through 3.9.
• Questions may test whether the rule is limited to sworn testimony - it is not; it applies whenever the lawyer presents evidence or argument for a client at an official hearing or meeting of a legislative body or agency. But it does not reach a lawyer's representation of a client in a negotiation or other bilateral transaction with a government agency, a license application, or routine compliance filings such as tax returns.
• MPRE may present a lawyer stating personal views as a private citizen with no client interest - Rule 3.9 does not apply because the lawyer isn't advocating for a client.