Reporter's Explanation of Changes
TEXT:
1. Restructure text to clarify circumstances in which lawyer may provide evaluation for use of third persons
The Commission recommends restructuring the Rule to clarify its application in two situations. The first is one where the evaluation poses no significant risk to the client. Here, the lawyer may be impliedly authorized to provide the evaluation, and paragraph (a) requires only that the lawyer determine that providing the evaluation is compatible with other aspects of the client-lawyer relationship. The second situation is one where there is a significant risk of material and adverse effect on the client's interests. Here, paragraph (b) provides that the lawyer may not proceed without obtaining the client's informed consent. Paragraph (c) reminds lawyers that the disclosure of information pursuant to providing an evaluation is governed by Rule 1.6, under which disclosures may be impliedly or expressly authorized.
2. Paragraph (a): Substitute "provides" for "undertakes"
This change reflects the Commission's view that it is not the undertaking that is potentially problematic but rather the actual provision of an evaluation for use by third persons.
3. Paragraph (b): Substitute "informed consent" for "consent after consultation"
The Commission is recommending that throughout the Rules the phrase "consent after consultation" be replaced with "gives informed consent," as defined in Rule 1.0(e). No change in substance is intended.
4. Paragraph (b): Material adverse effect
This paragraph clarifies that informed consent is not required in all cases but rather only those in which there is a significant risk of material adverse effect on the client's interests.
5. Paragraph (c): Substitute "authorized" for "required"
This change reflects the Commission's view that disclosures in connection with an evaluation under this Rule are not "required" but rather "authorized" and that the authorization must conform to the requirements of Rule 1.6.
COMMENT:
[1] The addition to this Comment is designed to explain the relationship between this Rule and Rule 1.2, in which the lawyer's authority to provide an evaluation may be expressly or impliedly authorized.
[2] The Commission recommends deleting this Comment on the ground that neither its meaning nor its function is clear.
Caption The caption has been changed to reflect the context of the Comment, which addresses duties to both third persons and to clients.
[4] The Commission recommends the addition of a cross-reference to Rule 4.1 in response to expressions of concern that lawyers should not render an opinion based on stated facts when the lawyer knows the facts to be otherwise.
Caption This new caption introduces the new material in Comment [5].
[5] This new Comment discusses and explains the requirement to obtain the informed consent of the client if there is a significant risk of material and adverse effect on the client's interests. "Informed consent" is defined in Rule 1.0(e).
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