A lawyer representing a client before a legislative body or administrative agency in a non-adjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rule 3.3(a) through (c), 3.4(a) through (c), and 3.5.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 3.9 (2002).

In 2002, the ABA amended the text of the corresponding Model Rule to replace the former reference to “legislative or administrative tribunal” with “legislative body or administrative agency.” The ABA defined the term “tribunal” in Rule 1.0(m) to denote courts and other agencies when those agencies are acting in an adjudicative capacity. The ABA believed that this change was necessary to clarify that Rule 3.9 applies only when the lawyer is representing a client in a nonadjudicative proceeding of a legislative body or administrative agency. See ABA Ethics 2000 Commission Revision Notes to Model Rule 3.9 (2002).

Comments to ABA Model Rule 3.9

[1] In representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rulemaking or policy-making capacity, lawyers present facts, formulate issues and advance arguments in the matters under consideration. The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. See Rules 3.3(a) through (c), 3.4(a) through (c) and 3.5.

[2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

[3] This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer’s client is presenting evidence or argument. It does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as the filing of income-tax returns. Nor does it apply to the representation of a client in connection with an investigation or examination of the client’s affairs conducted by government investigators or examiners. Representation in such matters is governed by Rules 4.1 through 4.4.

Annotations

Generally

This rule requires a lawyer to disclose to a legislative body or administrative agency whether he appears on behalf of himself or on behalf of a client. La. Rules of Prof’l Conduct R. 3.9 (2004); see also Restatement (Third) of the Law Governing Lawyers § 104(1) (2000) (requiring a lawyer to “disclose that the appearance is in a representative capacity and not misrepresent the capacity in which the lawyer appears”). Furthermore, a lawyer appearing before such a tribunal in a nonadjudicative proceeding must comply with Louisiana Rules 3.3(a-c) (Candor Toward the Tribunal), 3.4(a-c) (Fairness to Opposing Party and Counsel), and 3.5 (Impartiality and Decorum of the Tribunal). Id. Note, however, that since this rule does not contain any cross reference to 3.1 and 3.2, among others, lawyers arguably “enjoy somewhat greater latitude in nonadjudicative administrative proceedings.” ABA Annotated Model Rules of Professional Conduct at 407 (5th ed. 2003).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s abuse of the legal process: disbarment, when the lawyer knowingly violates a court rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding; suspension, when the lawyer knows that he is violating a court rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding; reprimand, when the lawyer negligently fails to comply with a court rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a court proceeding; admonition, when the lawyer engages in an isolated instance of negligence in complying with a court rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.2 (1992) (Abuse of Legal Process); id. stds. 6.21-6.24.

Notes

This page was updated on January 18, 2017.