May I Undertake a Limited Scope Representation?

Half FullA Louisiana lawyer may undertake a “limited scope” representation of a client. See La. Rules of Prof’l Conduct R. 1.2(c). For example, a lawyer who represents an employee injured on the job may agree to handle a products-liability case against the manufacturer of the machine that caused the injury, but decline to handle the worker’s compensation matter against the client’s employer. Or, a family lawyer who represents a divorcing spouse may agree to handle a community property partition, but decline to handle a custody dispute. Although permissible, the limitation must be “reasonable under the circumstances,” and the client must provide “informed consent.” Id.

In the matter of In re Zuber, 101 So. 3d 29 (La. 2012), the Louisiana Supreme Court considered this rule in the context of an insurance-defense lawyer who agreed to represent the insured—a physician in a medical malpractice case—but who limited the scope of his representation by taking settlement direction only from the insurance company (in accordance with the plain language of the insured’s contract of insurance). Under these circumstances, the court suggested the following:

A prudent lawyer hired by an insurer to defend an insured will communicate with the insured concerning the limits of the representation at the earliest practicable time. For example, basic information concerning the nature of the representation and the insurer’s right to control the defense and settlement under the insurance contract reasonably could be incorporated as part of any routine notice to the insured that the lawyer has been retained by the insurer to represent him.

Zuber, 101 So. 3d at 34 (citing ABA Formal Ethics Op. 96-403 (1996)). Thereafter, during the course of the limited scope representation, “the lawyer should make efforts to keep the insured reasonably apprised of developments in the case.” Id. at 35 (citing Mitchum v. Hudgens, 533 So. 2d 194, 202 (Ala. 1988)).

Unfortunately, Zuber did not discuss the limited scope of his representation with his physician client. Fortunately for him, however, the court decided to give him a break: “[G]iven the lack of controlling jurisprudence at the time of respondents’ actions in this case and considering the totality of the circumstances, we decline to find clear and convincing evidence of any violation of the Rules of Professional Conduct on their part. Accordingly, we will dismiss the formal charges.” Id. Future lawyers will not be so lucky:

[W]e take this opportunity to make it clear to respondents and all members of the bar that limited representation situations are fraught with potential dangers to all parties, as readily illustrated by the instant case. Henceforth, lawyers should be scrupulous in adherence to their obligations under Rule 1.2 to ensure that all clients in such a relationship are fully apprised of the nature of the representation and indicate consent by accepting the defense. Such communications will ensure that the client’s rights are protected and minimize any potential for future disagreement over the nature of the representation.

Id. at 35. The takeaway? A limited scope representation is acceptable—if reasonable, and if the client and lawyer go into the representation with eyes wide open.