Rule 1.0. Terminology

(a) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances.

(b) “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

(c) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.

(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.

(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

(g) “Partner” denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.

(h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

(i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

(j) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

(k) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.

(l) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.

(m) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.

(n) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 1.0 (2002), except for paragraph (n) (ABA revision in 2012 replaced “e-mail” with “electronic communications.”

Prior to 2002, Louisiana, like most other states, never adopted the “Terminology” provision of the ABA Model Rules because the ABA provision had no rule number. In 2002, the ABA removed the stand-alone Terminology section from the Model Rules and created a new Rule 1.0 to give the defined terms greater prominence and to permit the use of Comments to explicate further some of the provisions. See ABA Ethics 2000 Commission Revision Notes to Model Rule 1.0 (2002).

“Informed Consent.” In 2002, the ABA substituted the term “informed consent” for the pre-2002 term “consent after consultation.” The ABA believed that the term “consultation” was not well understood and did not sufficiently indicate the extent to which clients had to be given adequate information and explanation in order to make reasonably informed decisions. The ABA believed that the term “informed consent,” which is familiar from its use in other contexts, is more likely to convey to lawyers what is required under the Rules. No change in substance was intended. See id.

“Firm.” In 2002, the ABA clarified (in comments to ABA Rule 1.0) that legal departments of government entities are included within the definition of “firm.” The ABA also included a reference to “other association authorized to practice law” to encompass lawyers practicing in limited liability entities. However, it intended no change in substance. See id.

“Fraud.” In 2002, the ABA redefined the term “fraud” because it was concerned that the pre-2002 definition was ambiguous since it did not clearly state whether, in addition to the intent to deceive, the conduct in question had to be fraudulent under applicable substantive or procedural law. The ABA was concerned that under the prior definition conduct could be considered “fraudulent” merely because it involved an intention to deceive, even though it did not violate any other law. The ABA clarified in Model Rule 1.0 that in order for conduct to be “fraudulent,” it must be fraudulent under applicable substantive or procedural law. See id.

“Writing.” In 2002, the ABA defined “signed” to include methods intended as the equivalent of a traditional signature. This electronic signature provision was modeled on the Uniform Electronic Transactions Act. See id.

“Screened.” In 2002, the ABA defined “screened” to include a requirement that the lawyer be “timely” isolated from participation in the matter. The ABA believed that the timeliness requirement is so important that it included the timeliness requirement in the text of Rules 1.11, 1.12 and 1.18. See ABA Ethics 2000 Commission Revision Notes to Model Rule 1.11 (2002).

Comments to ABA Model Rule 1.0

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client’s informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.

Firm

[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.

[3] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

Fraud

[5] When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.

[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client’s or other person’s silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person’s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (n) and (b). Other Rules require that a client’s consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (n).

Screened

[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.

[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other information, including information in electronic form, relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.

[10] In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.

Annotations

Firm

As to indigent defenders’ offices in Louisiana, the Louisiana Supreme Court has held as follows:

Generally, under our jurisprudence, “Indigent Defender Boards are … treated as the equivalent of private law firms to effectuate a defendant’s Sixth Amendment right to effective assistance of conflict-free counsel and the ethical obligation of an attorney associated with other lawyers in a firm to avoid representing a client ‘when any one of them practicing alone would be prohibited from doing so . . . .’ La. Rules of Professional Responsibility, Rule 1.10(a).”

State v. Garcia, 108 So. 3d 1, 28 (La. 2012) (citing State v. Connolly, 930 So.2d 951, 954 n.1 (La. 2006); State v. McNeal, 594 So. 2d 876 (La.1992)). However, the court in Garcia suggested that lawyers employed as “independent contractors” are not members of the “firm.” Id. This should be considered a fact-specific holding in the Garcia case and not a general holding. Whether a lawyer is a member of a “firm” should not turn on whether the lawyer is labelled a “partner,” “employee” or “independent contractor.” The analysis should be a functional and practical one, that considers the lawyer’s access to confidential information, and the sharing of information among other lawyers with whom the lawyer is associated in the practice of law.

Fraud

Consistent with paragraph (d) of this rule, the term “fraud” is defined in the Louisiana Civil Code to include only intentional affirmative misrepresentations or suppressions of the truth—not merely negligent ones:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

La. Civ. Code art. 1953.

Informed Consent

The comments to the Model Rules state that a client’s “experienced in legal matters generally and in making decisions of the type involved” is a factor relevant to evaluating informed consent. See ABA Model Rules of Prof’l Conduct Rule 1.0, cmt. 6 (2002). The Louisiana Supreme Court in Hodges v. Reasonover, 103 So. 3d 1069, 1078 (La. 2012), however, held that the “sophistication” of the client is an irrelevant factor in evaluating informed consent:

We decline to find the extent of an attorney’s fiduciary duty depends on the sophistication of the client. To do so would create two classes of clients and implicitly hold that well-educated, business-savvy clients are somehow less deserving of an attorney’s full candor and loyalty. This rule would be directly contrary to the high ethical standards set forth in the Rules of Professional Conduct and repugnant to Louisiana public policy.

Therefore, a Louisiana lawyer should provide full and extensive disclosure in all cases in which the lawyer seeks informed consent—irrespective of the sophistication of the client.

Notes

This page was updated on July 26, 2013.