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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
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(a) A lawyer may provide an evaluation of a matter affecting a client for 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. (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 the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
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| MRPC 2.3 describes the circumstances under which a lawyer may undertake to provide a legal evaluation of a matter for use by nonclients and when the lawyer should refrain from providing an evaluation to a third party. The latter point is made clear Comment 3 to MRPC 2.3:
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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.
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| Comment 2 also notes that, “the general rules concerning loyalty to client and preservation of confidences apply”, which makes it essential to identify the person by whom the lawyer is retained. MRPC 2.3 is of limited application to the representation of clients in the estate planning and estate administration context--by its terms it only applies if the lawyer undertakes to perform an evaluation of the type described in the Comment.
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| The Comment to MRPC 2.3 also indicates that it applies primarily to the preparation of evaluations such as title reports or opinions required by governmental agencies that will be relied upon by nonclients. MRPC 2.3 logically applies to such evaluations regardless of the particular nature of the client or the type of representation involved.
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| Under MRPC 2.3(1) the lawyer may undertake an evaluation only if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. Thus, as noted in the Comment to MRPC 2.3, “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.”
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| Information relating to an evaluation is subject to MRPC 1.6 (Confidentiality of Information). Where it is reasonably likely that providing the evaluation will affect a client’s interests materially and adversely, the lawyer must first obtain the client’s informed consent. See MRPCs 1.6(a) (providing in part that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent); 1.0(e) (defining informed consent).
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| Evaluations prepared for the use of nonclients are also subject to the requirements of MRPC 4.1 (Truthfulness in Statements to Others). In addition, MRPC 3.3 (Candor toward the Tribunal) prohibits a lawyer from presenting to the court any petition, accounting, or other document or evidence that is false or fails to disclose a material fact if disclosure is necessary to avoid assisting a client in a criminal or fraudulent act.
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| Ethics Opinion
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South Carolina:
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Op. 93-34 (1993). An attorney for an estate in probate or an attorney acting as personal representative
for an estate in probate has no ethical duty to inform a surviving spouse of the right to claim an elective
share in the absence of a present or past attorney-client relationship with the surviving spouse.
The attorney for the estate in probate should take care to see that the spouse does not rely on him for
legal advice and is informed of the right to independent counsel. The attorney acting as personal representative
for the estate in probate should take care that the beneficiaries not misunderstand the attorney’s
role by assuming that he represents them.
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