A lawyer is participating in a legislative hearing on proposed environmental regulations. During the hearing, the lawyer, representing an industry group, presents scientific data and expert opinions. The lawyer knows that some of the data presented is selectively chosen to support the industry's position and omits other relevant data that would weaken their argument, but the presented data itself is not false.
- AThe lawyer's conduct is ethical because the lawyer is not making false statements and is zealously advocating for the client.
- BThe lawyer's conduct is ethical because legislative hearings are not adjudicative proceedings, and candor rules are relaxed.
- CThe lawyer's conduct is unethical only if the omitted data is legally required to be disclosed.
- DThe lawyer's conduct is unethical because lawyers in nonadjudicative proceedings have a duty of candor and must disclose known material facts.
Show answer & explanationAnswer & explanation
Correct answer: D. The lawyer's conduct is unethical because lawyers in nonadjudicative proceedings have a duty of candor and must disclose known material facts.
Rule 3.9 states that a lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. Rule 3.3(a)(2) generally prohibits a lawyer from failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. Even outside this specific rule, the spirit of candor in nonadjudicative proceedings requires disclosure of known material facts when presenting arguments, especially if the omission renders the presentation misleading.
Why the other options are wrong
- A. While not making explicitly false statements, selectively omitting material facts to mislead can still be unethical, especially in nonadjudicative proceedings where candor is crucial.
- B. While not strictly adjudicative, Rule 3.9 extends specific candor rules to nonadjudicative proceedings, making this statement incorrect.
- C. The ethical duty can extend beyond legally mandated disclosure, encompassing a broader duty of candor to avoid misleading the body.
Advocate in Nonadjudicative Proceedings
A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding must disclose their representative capacity and conform to specific candor and fairness rules.
- Must identify client and representative capacity.
- Bound by rules against making false statements and failing to disclose material facts.
- Goal is to inform, not to mislead, even when advocating for a position.
Memory trick: In legislative halls, candor calls, no half-truths to enthrall, lest ethical standards fall.