ANNOTATIONSCOMMENT
Definition
An evaluation may be performed at the client's direction but for
the primary purpose of establishing information for the benefit of third
parties; for example, an opinion concerning the title of property
rendered at the behest of a vendor for the information of a prospective
purchaser, or at the behest of a borrower for the information of a
prospective lender. In some situations, the evaluation may be required
by a government agency; for example, an opinion concerning the legality
of the securities registered for sale under the securities laws. In
other instances, the evaluation may be required by a third person, such
as a purchaser of a business.
Lawyers for the government may be called upon to give a formal
opinion on the legality of contemplated government agency action. In making
such an evaluation, the government lawyer acts at the behest of the government
as the client but for the purpose of establishing the limits of the agency's
authorized activity. Such an opinion is to be distinguished from confidential
legal advice given agency officials. The critical question is whether the opinion is to be made public.
A legal evaluation should be distinguished from an investigation
of a person with whom the lawyer does not have a client-lawyer
relationship. For example, a lawyer retained by a purchaser to analyze
a vendor's title to property does not have a client-lawyer relationship
with the vendor. So also, an investigation into a person's affairs by a
government lawyer, or by special counsel employed by the government, is
not an evaluation as that term is used in this Rule. The question is
whether the lawyer is retained by the person whose affairs are being
examined. When the lawyer is retained by that person, the general rules
concerning loyalty to client and preservation of confidences apply,
which is not the case if the lawyer is retained by someone else. For
this reason, it is essential to identify the person by whom the lawyer
is retained. This should be made clear not only to the person under
examination, but also to others to whom the results are to be made
available.
Duty to Third Person
When the evaluation is intended for the information or use of a
third person, a legal duty to that person may or may not arise. That
legal question is beyond the scope of this Rule. However, since such an
evaluation involves a departure from the normal client-lawyer
relationship, careful analysis of the situation is required. The lawyer
must be satisfied as a matter of professional judgment that making the
evaluation is compatible with other functions undertaken in behalf of
the client. For example, if the lawyer is acting as advocate in
defending the client against charges of fraud, it would normally be
incompatible with that responsibility for the lawyer to perform an
evaluation for others concerning the same or a related transaction.
Assuming no such impediment is apparent, however, the lawyer should
advise the client of the implications of the evaluation, particularly
the lawyer's responsibilities to third persons and the duty to
disseminate the findings.
Access to and Disclosure of Information
The quality of an evaluation depends on the freedom and extent of
the investigation upon which it is based. Ordinarily a lawyer should
have whatever latitude of investigation seems necessary as a matter of
professional judgment. Under some circumstances, however, the terms of
the evaluation may be limited. For example, certain issues or sources
may be categorically excluded, or the scope of search may be limited by
time constraints or the noncooperation of persons having relevant
information. Any such limitations which are material to the evaluation
should be described in the report. If after a lawyer has commenced an
evaluation, the client refuses to comply with the terms upon which it
was understood the evaluation was to have been made, the lawyer's
obligations are determined by law, having reference to the terms of the
client's agreement and the surrounding circumstances.
Financial Auditors' Requests for Information
When a question concerning the legal situation of a client arises
at the insistence of the client's financial auditor and the question is
referred to the lawyer, the lawyer's response may be made in accordance
with procedures recognized in the legal profession. Such a procedure is
set forth in the American Bar Association Statement of Policy Regarding
Lawyers' Responses to Auditors' Requests for Information, adopted in
1975.
COMMITTEE COMMENT
There is no counterpart to Rule 2.3 in the Code. Rule 2.3
generally codifies current practice with respect to third-party
(non-client) use of, and reliance upon, a lawyer's services. It is a
helpful addition.
|
