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Alabama Rule 2.3 Evaluation for Use by Third Persons (a) A lawyer may undertake an evaluation of a matter affecting a client for the use of someone other than the client if: (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 client consents after consultation. (b) Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6. COMMENT Definition An evaluation may be performed at the client's direction but for the primary 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 business. 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.
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.
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.
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. There was no counterpart to this Rule in the former Alabama Code of Professional Responsibility. |
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