Ethically Speaking
| Publication year | 2014 |
| Pages | 46 |
John M. Burman, Emeritus Carl M. Williams Professor of Law & Ethics University of Wyoming College of Law.
A Lawyer as a Representative Part V: Evaluator
Lawyers play many roles during their careers, though most involve representing clients. In all their professional activities, of course, lawyers licensed in Wyoming are bound by the Wyoming Rules of Professional Conduct ("the Rules"). The Rules consist of several parts. They begin with a Preamble and a section on Scope. Those parts "provide general orientation" to the Rules.[1] Part of that is to explain what lawyers do.
Paragraph [2] of the Preamble helps to explain what lawyers do: "[a] lawyer performs various functions . . ..[a]s an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others."[2] Three terms are in bold. The first, "evaluator," because it needs to be defined. The second, "by examining a client's legal affairs" because it describes what evaluators do. And the third, "to the client or to others," because it indicates a major shift in what a lawyer as an evaluator does, compared to many of the roles lawyers normally play
Evaluator
The word "evaluator" is not used elsewhere in the Rules, except the variant "evaluation" is used in Rule 2.3, the Rule which describes evaluations for the use of others. Not surprisingly, the Rules do not define "evaluator" or any of its variants. Similarly, the Wyoming Supreme Court has not defined the term.
When a term is not defined by the law, it is "to be accorded its ordinary and common meaning" when a court is asked to interpret it.[3] The common meaning of "evaluator" is "one who evaluates." "Evaluate" is a verb which means "to determine or set the value or amount of; appraise ... to judge or determine the significance, worth, or quality of; assess: to evaluate the results of an experiment . . . ."[4]
"[T]o judge or determine the significance, worth, or quality . . ." is similar to the statement in the Preamble that, "as an evaluator, a lawyer 'acts by examining a clients legal affairs and reporting about them . . .'"[5]
Reporting About the Client's Legal Affairs to the Client
Possibly the most common thing many lawyers do is examine clients' legal affairs and report on them to clients. Doing so is part of acting as an advisor, where a lawyer "provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications . . . ."[6] Since lawyers must communicate with their clients,[7] there is little doubt that they "report," either orally or in writing, about the results.
Since "evaluation" is part of "advising," the obvious question is why is it a separate "role" for a lawyer? The answer is found in the last clause of the sentence in the Preamble. The report of the evaluation may go to the client "or to others."[8] Those words, "or to others," change everything, both ethically and legally.
Reporting About the Client's Legal Affairs to Others
Changing from reporting to a client to "others" means that a lawyer is subject to and must follow Rule 2.3, "Evaluation for use by third persons? The title of the Rule indicates its applicability and its provisions show its importance.
Before discussing the Rule, it is worth mentioning that lawyers, especially transactional ones, often act as evaluators for the benefit of third persons. Consider, for example, how often lawyers are asked to provide evaluations as part of audits of business clients, or how often a lender wants a report about a borrower before the lender will lend money to a prospective borrower. In either situation, the evaluation "may be performed at the client's direction or when impliedly authorized in order to carry out the representation."[9] Whether expressed or implied, a lawyer is...
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