Does Rule 3.3, Candor toward the Tribunal, apply to lawyers appearing before local government boards and agencies?

Yes if the board or agency meets the definition of “Tribunal” under RPC. 1.0(n):

(n) ‘‘Tribunal’’ denotes a court, an arbitrator in
a binding arbitration proceeding or a legislative
body, administrative agency or other body acting
in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an
adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument
by a party or parties, will render a binding legal
judgment directly affecting a party’s interests in a
particular matter.

Lawyers represent clients in public hearings before local government agencies and boards regularly.  (Planning and Zoning Boards are a familiar example.)  The rules governing what  lawyers say at public hearings are sometimes  – if not always – forgotten or ignored.  The most basic rule is to respect the distinction between making legal arguments on one hand and making representations of fact on the other.

Rule 3.3. Candor toward the Tribunal, provides in part as follows:

(a) A lawyer shall not knowingly:
(1) Make a false statement of fact or law to a
tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by
the lawyer;
(2) Fail to disclose to the tribunal legal authority
in the controlling jurisdiction known to the lawyer
to be directly adverse to the position of the client
and not disclosed by opposing counsel; or
(3) Offer evidence that the lawyer knows to be
false. If a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evidence
and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures,
including, if necessary, disclosure to the
(b) A lawyer who represents a client in an adjudicative
proceeding and who knows that a person
intends to engage, is engaging or has engaged
in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures,
including, if necessary, disclosure to the
(c) The duties stated in subsections (a) and (b)
continue at least to the conclusion of the proceeding,
and apply even if compliance requires disclosure
of information otherwise protected by Rule
(d) In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to
the lawyer that will enable the tribunal to make
an informed decision, whether or not the facts
are adverse.
(e) When, prior to judgment, a lawyer becomes
aware of discussion or conduct by a juror which
violates the trial court’s instructions to the jury,
the lawyer shall promptly report that discussion
or conduct to the trial judge.
(P.B. 1978-1997, Rule 3.3.)
Leaving aside the question  of whether lawyers always command respect when they speak on behalf of clients before administrative agencies, it does seem to be the case that members of the public and local government officials and board members pay more attention to what lawyers say, claim and argue than they do to non-lawyers. In short, lawyers are expected to be and are often thought to be more credible because of their status as lawyers.  Administrative agencies, which exercise government power and adjudicate the rights of citizens, are supposed to base their decisions on reliable, accurate factual information.  What constitutes reliable, accurate factual information is not always clear but it should be.  One of the crucial distinctions is between legal argument and factual representations.  When appearing before Tribunals lawyers lawyers have a professional obligation to observe the distinction between legal argument and factual representations.  For example, a lawyer appearing before a planning and zoning board might say that “if the plan is approved there will be no increase in traffic.”  Is the lawyer making an argument or is she making a representation of fact?   The distinction is important and often overlooked.  More to follow in a later post.  Comments welcome.