2.3 2.2 EVALUATION FOR
USE BY THIRD PERSONS
(a) A lawyer may
undertake provide an
evaluation of a matter affecting a client for the use of
someone other than the client if : the lawyer reasonably believes that
making the evaluation is
compatible with other aspects of the lawyer's relationship with the client.
(1) The lawyer reasonably believes that making the evaluation is compatible with
other aspects of
the lawyer's relationship with the client; and
(2) The (b) When the lawyer knows or reasonably
should know that the evaluation is likely to
affect the client's interests materially and adversely, the lawyer shall not provide the evaluation
unless client consents after consultation.
(b) (c) Except as disclosure
is required authorized in connection with a report of an evaluation,
information relating to the evaluation is otherwise protected by Rule 1.6.
 Paragraph (b) prohibits providing an evaluation that may affect the client's interests materially and adversely unless the client consents after consultation. Obtaining the client's consent in writing is the preferred practice. Lack of a writing may make it difficult to prove client consent if a dispute arises later.
 An evaluation may be performed at the client's direction
or when impliedly authorized in
order to carry out the representation. See Rule 1.2. Such an evaluation may be for the
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
 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. In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this Rule. See Rule 4.1.
Financial Auditors' Requests for Information
 When a question concerning the legal situation of a client arises at the instance 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.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 04/26/85, 12/13/85 and 01/10/86; Minutes of the Joint Committee on Attorney Standards on 04/16/04; 03/18/05, 06/14/05.