Attorneys routinely render legal opinions to their clients that vary in length, topic, and form. Although attorneys’ provision of legal opinions to clients are generally subject to the ethical rules governing all representations, there are additional considerations when an attorney is asked to provide an evaluation about a client to a third party.
A common example is when a corporation hires a law firm to provide a government agency with an evaluation relating to the client’s business. In this scenario, the attorneys’ investigation could uncover unlawful activity or other findings that, if revealed, would be detrimental to the client’s interests. At that juncture, various fundamental duties could collide, such as the attorneys’ duty of loyalty, the duty to act as a “zealous advocate” on the client’s behalf, and the duty of confidentiality. Further, attorneys are generally prohibited from making false statements of fact.
Despite the issues third-party evaluations may pose, clients are often required to, or benefited by, their attorneys’ furnishing of an evaluation concerning them to a third party. Thus, this issue is addressed by Rule 2.3 of the Connecticut Rules of Professional Conduct, which provides that “[a] lawyer may 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.” Rule of Professional Conduct 2.3(a).
The rule also provides that, “[w]hen 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.” Rule of Professional Conduct 2.3(b). The rule also expressly references the attorney’s obligations under Rule 1.6 to maintain confidentiality for those matters and information beyond what is authorized to be disclosed.
The rule provides several considerations for attorneys facing this issue.
Determining Whether Rule 2.3 Applies A threshold question for determining whether Rule 2.3 applies is whether the attorney has been retained by the person or entity to whom he or she is providing the legal opinion. When attorneys provide a legal opinion to the individual or entity that retained them, i.e., the client, it generally is not contemplated that the attorney’s objective, candid assessment setting forth the client’s weaknesses and potential exposure will be shared with others. Indeed, such candor is generally expected by the client.
But clients may find it detrimental to their interests if their attorney provides an evaluation to a third party that includes negative information about the client, even when true. If there is any doubt, it can be helpful to obtain clarification from a client at the beginning of a representation as to whether the client wants their opinion to remain privileged or be shared with others. In the latter circumstance, attorneys may find Rule 2.3 helpful to defining the next steps.
Determining whether Rule 2.3 applies can involve an attorney’s professional judgment. The comments to the rule contain a few scenarios where the rule may apply, such as 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.” Another example is an evaluation that is required by a third person, “such as a purchaser of a [client’s] business.”
Separate from these contexts, many attorneys routinely prepare opinions or analyses to be shared with their client’s insurance carrier. The comments to the rule suggest, though, that such relationships may not be subject to the limitations of Rule 2.3, “provided that the report does not contain matter that is detrimental to the client’s relationship with the insurance carrier.”
Ethical Considerations If an attorney believes Rule 2.3 may apply, he or she may find it helpful to first evaluate whether providing the third-party evaluation “is compatible with other aspects of the lawyer’s relationship with the client.” In these circumstances, the rule’s comments inform that “careful analysis of the situation is required.”
In addition, an attorney obtaining “informed consent” under Rule 2.3(b) where a report is likely to adversely affect the client’s interests may consider describing the potential risks and harms of sharing that evaluation with a third party. Having this discussion early on can help ensure that both the attorney and client understand the purpose of the representation (i.e., whether the attorney is to act as an advocate or as an impartial evaluator) and avoid client relations problems later, as well as exposure for client and attorney.
Confidentiality and Privilege As with all representations, attorneys continue to owe their clients a duty of confidentiality in accordance with Rule 1.6. But once a third-party evaluation has been rendered, making the attorney’s opinion quasi-public, the attorney and client may no longer be able to protect the subject of the opinion as confidential. In fact, an attorney could even be required to disclose the rationale underlying his or her evaluation once it has been put at issue. Thus, attorneys may find it helpful to advise their clients of the potential disclosures that could be required after rendering third-party evaluations that could otherwise be deemed privileged if kept within the confines of the attorney-client relationship.
Providing a third party with an evaluation of a client raises a number of unique ethical and practical considerations; however, reviewing the rules can help attorneys best address these issues with their clients and provide ethical and effective representation.
Alanna G. Clair is a partner at Dentons US in Washington, D.C., and focuses on professional liability defense. Shari L. Klevens is a partner at Dentons US in Atlanta and Washington, D.C., and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons’ global insurance sector team. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”