Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › COUNSELOR › Rule 2.3 - Evaluation for Use by Third Persons

Current through Register Vol. 54, No. 28, July 13, 2024
(a) 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.
(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.
Comment:
Definition
(1) An evaluation may be performed at the
						client's direction or when impliedly authorized in order to carry out the
						representation. See Rule 1.2. Such an evaluation may be 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.
(2) 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.
Duties Owed to Third Person and
						  Client
(3) 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.
Scope of Evaluation
(4) 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. In no circumstances is the lawyer permitted to knowingly make a
						false statement of material fact or law in providing an evaluation under this
						Rule. See Rule 4.1.
Confidential
						  Information
(5)
						Information relating to an evaluation is protected by Rule
						1.6. In many situations,
						providing an evaluation to a third party poses no significant risk to the
						client; thus, the lawyer may be impliedly authorized to disclose information to
						carry out the representation. See Rule
						1.6(a). Where,
						however, it is reasonably likely that providing the evaluation will affect the
						client's interests materially and adversely, the lawyer must first obtain the
						client's consent after the client has been adequately informed concerning the
						important possible effects on the client's interests. See Rule
						1.6(a) and Rule
						1.0(e) (Informed Consent).
Financial Auditors' Requests for Information
(6) 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.