RULE 3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS

Obsolete Date: 8/1/2006

A lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (e) and 3.4(a) through (c). A lawyer shall also conform to the provisions of Rule 3.5, except the lawyer may participate in ex parte communications with members of a legislative body regarding legislative matters but not adjudicative matters.

COMMENT

In representation before bodies engaged in rule-making or policy making, such as legislatures, municipal councils, or executive or administrative agencies, lawyers present facts, formulate issues and advance argument in the matters under consideration. The decision-making body, like a tribunal, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure.

Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a tribunal. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislative and administrative bodies have a right to expect lawyers to deal with them as lawyers are required to deal with tribunal.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 09/20/85 and 01/10/86; Minutes of the Joint Committee on Attorney Standards Meeting of 12/01/95, 06/11/96.

History: Amendments to Rule 3.9, ND Rules of Professional Conduct, adopted October 23,1996, on an emergency basis, effective November 1, 1996. Amended and adopted on a final basis, effective December 11, 1996.