United States District Court
Northern District Of Illinois
LR83.52.2. Evaluation for Use by Third Persons
(a) A lawyer may undertake an evaluation of a matter affecting a client for the
use of someone other than the client if:
(1) the lawyer reasonably believes that making the evaluation is compatible with
other aspects of the lawyer’s relationship with the client; and
(2) the client consents after disclosure.
(b) Except as disclosure is required in connection with a report of an evaluation,
information relating to the evaluation is otherwise protected by LR83.51.6.
Committee Comment. Definition. An evaluation may be performed at the client’s direction but 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.
Lawyers for the government may be called upon to give a formal opinion on the
legality of contemplated government agency action. In making such an
evaluation, the government lawyer acts at the behest of the government as the client but
for the purpose of establishing the limits of the agency’s authorized activity. Such an opinion is to be distinguished from
confidential legal advice given agency officials. The critical question is whether the
opinion is to be made public.
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.
Duty to Third Person. 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.
Access to and Disclosure of Information. 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.
Financial Auditors’ Requests for Information. 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.