Rule Text (verbatim from The Florida Bar)
(a) When Lawyer May Provide Evaluation. A lawyer may
provide 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 gives informed consent.
(b) Limitation on Scope of Evaluation. In reporting the
evaluation, the lawyer shall indicate any material limitations that
were imposed on the scope of the inquiry or on the disclosure of
information.
(c) Maintaining Client Confidences. Except as disclosure is
required in connection with a report of an evaluation, information
relating to the evaluation is otherwise protected by rule 4-1.6.
Educational reference. This page summarizes a Florida Rule of Professional Conduct for educational purposes. The rule text and Comment are mirrored from the Florida Bar's official publication and are public domain. The plain-English summary and any commentary are the opinion of Phillips, Hunt & Walker and are general information only — not legal advice. Reading this page does not create an attorney-client relationship. If you believe a Florida lawyer has violated this rule, you can file a complaint with The Florida Bar at floridabar.org. Past results do not guarantee a similar outcome.
What this rule means in plain English
When a Florida lawyer evaluates a matter for someone other than a client — for example, providing an opinion letter intended for a third party — the lawyer must get the actual client’s informed consent and must keep the duty of confidentiality intact unless the client agrees to disclosure. Evaluations for use by third parties are a real practice area but generate a real conflict between transparency to the recipient and confidentiality to the client.
Comment (verbatim from The Florida Bar)
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.
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 an 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 that 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 4-4.1.
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.
Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252);
amended March 23, 2006, effective May 22, 2006 (933 So.2d 417).