Utah Sup. Ct. R. Prof. Prac. 2.3
Utah. Sup. Ct. R. Prof. Prac. 2.3
COMMENT
Definition
An evaluation may be performed at the client's direction but for theprimary purpose of establishing information for the benefit of third parties;for example, an opinion concerning the title of property rendered at thebehest of a vendor for the information of a prospective purchaser, or atthe behest of a borrower for the information of a prospective lender. Insome situations, the evaluation may be required by a government agency;for example, an opinion concerning the legality of the securities registeredfor sale under the securities laws. In other instances, the evaluationmay 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 opinionon the legality of contemplated government agency action. In making suchan evaluation, the government lawyer acts at the behest of the governmentas the client but for the purpose of establishing the limits of the agency'sauthorized activity. Such an opinion is to be distinguished from confidentiallegal advice given agency officials. The critical question is whether theopinion is to be made public.
A legal evaluation should be distinguished from an investigation ofa 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 titleto 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 evaluationas that term is used in this Rule. The question is whether the lawyer isretained by the person whose affairs are being examined. When the lawyeris retained by that person, the general rules concerning loyalty to clientand preservation of confidences apply, which is not the case if the lawyeris retained by someone else. For this reason, it is essential to identifythe person by whom the lawyer is retained. This should be made clear notonly to the person under examination, but also to others to whom the resultsare to be made available.
Duty to Third Person
When the evaluation is intended for the information or use of a thirdperson, a legal duty to that person may or may not arise. That legal questionis beyond the scope of this Rule. However, since such an evaluation involvesa departure from the normal client-lawyer relationship, careful analysisof the situation is required. The lawyer must be satisfied as a matterof professional judgment that making the evaluation is compatible withother functions undertaken in behalf of the client. For example, if thelawyer is acting as advocate in defending the client against charges offraud, it would normally be incompatible with that responsibility for thelawyer to perform an evaluation for others concerning the same or a relatedtransaction. Assuming no such impediment is apparent, however, the lawyershould advise the client of the implications of the evaluation, particularlythe lawyer's responsibilities to third persons and the duty to disseminatethe findings.
Access to and Disclosure of Information
The quality of an evaluation depends on the freedom and extent of theinvestigation upon which it is based. Ordinarily a lawyer should have whateverlatitude 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, orthe scope of search may be limited by time constraints or the noncooperationof persons having relevant information. Any such limitations which arematerial to the evaluation should be described in the report. If aftera lawyer has commenced an evaluation, the client refuses to comply withthe terms upon which it was understood the evaluation was to have beenmade, the lawyer's obligations are determined by law, having referenceto the terms of the client's agreement and the surrounding circumstances.
Financial Auditors' Requests for Information
When a question concerning the legal situation of a client arises atthe instance of the client's financial auditor and the question is referredto the lawyer, the lawyer's response may be made in accordance with proceduresrecognized in the legal profession. Such a procedure is set forth in theAmerican Bar Association Statement of Policy Regarding Lawyers' Responsesto Auditors' Requests for Information, adopted in 1975.