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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Ohio Legal Ethics Narrative

III ADVOCATE

3.9 RULE 3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS

3.9:100 Comparative Analysis of Ohio Rule

  • Primary Ohio References: Ohio Rule 3.9
  • Background References: ABA Model Rule 3.9
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 8.22-8.23

3.9:101 Model Rule Comparison

Ohio Rule 3.9 is identical to the Model Rule.

3.9:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.9: None.

3.9:200 Duties of Advocate in Nonadjudicative Proceedings

  • Primary Ohio References: Ohio Rule 3.9
  • Background References: ABA Model Rule 3.9
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 8.19
  • Commentary: ALI-LGL § 104; Wolfram § 13.8

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 8.19 (1996).

Ohio 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 the provisions of Rules 3.3(a) to (c), 3.4(a) to (c), and 3.5.

See sections 3.3:200-:700, 3.4:200-:400, and 3.5:200-500. [Query how some of the provisions of Rule 3.5 (such as division (b), dealing with disclosure of improper conduct by or toward a juror) could possibly have any relevance to the nonadjudicative proceedings addressed in Rule 3.9.]

Comment [1] provides that such decision-making bodies (i.e., "legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity") "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." Rule 3.9 cmt. [1].

Comment [3] cautions that the Rule applies only

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 governmental investigators or examiners. Representation in such matters is governed by Rules 4.1 to 4.4.

Rule 3.9 cmt. [3].

See also 1 Restatement (Third) of the Law Governing Lawyers § 104 (2000).

It should be noted also that the OHCPR dealt with limits placed on a lawyer/public official with respect to advocacy in legislative matters. Former OH DR 8-101(A)(1) provided that a lawyer who held public office could not

[u]se his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.

There is no comparable provision in the Rules.