(a) Subject to the provisions of Rule 1.16 and to paragraphs (c) and (d) of this Rule, a lawyer shall abide by a client’s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, religious, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to the ABA Model Rules of Professional Conduct 1.2 (2002), except for two minor substantive changes.

First, paragraph (a) contains the language “[s]ubject to the provisions of Rule 1.16.” (The ABA Model Rule does not cross-reference Rule 1.16.) The LSBA proposed this revision to clarify that a lawyer who disagrees with a client’s decisions concerning the objectives of representation may withdraw, must withdraw, or may be required to continue the representation, as permitted or required by Rule 1.16.

Second, the LSBA recommended, and the court adopted, the inclusion of “religious . . . views” in paragraph (b). This insertion, made through a floor amendment during the LSBA House of Delegates meeting in January 2003, clarifies that a lawyer does not endorse the religious views of their clients merely by representing them.

Paragraph (a): Implied Authority to Act

The ABA added a sentence to paragraph (a) of the corresponding Model Rule to clarify that “[a] lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.” It also added a new Comment 2 that addresses the resolution of disagreements with clients about the means to be used to accomplish the client’s objectives. See ABA Ethics 2000 Commission Revision Notes to Model Rule 1.2 (2002). The new sentence in paragraph (a) parallels the reference in Model Rule 1.6(a) to the lawyer’s implied authority to reveal information relating to the representation. The scope of the lawyer’s implied authority is to be determined by reference to the law of agency. The ABA Ethics 2000 Commission believed that this formulation struck the right balance between respect for the lawyer’s expertise and the preservation of the client’s autonomy by allowing the lawyer to exercise professional discretion on behalf of the client, subject to consultation with the client as required by Rule 1.4(a)(2), but leaving open the possibility that a client might revoke such implied authority. See id.

Paragraph (a): Duty to Abide by Client Instructions

Other than acknowledging the power of the client to revoke a lawyer’s implied authority, the ABA Ethics 2000 Commission did not attempt to specify the lawyer’s duties when the lawyer and client disagree about the means to be used to accomplish the client’s objectives. As explained in Comment 2, the Commission believed that disagreements between a lawyer and client about means must be worked out by the lawyer and client within a framework defined by the law of agency, the right of the client to discharge the lawyer, and the right of the lawyer to withdraw from the representation if the lawyer has a fundamental disagreement with the client. See id.

Paragraph (c): Limited-Scope Representations

The ABA Ethics 2000 Commission modified paragraph (c) to more clearly permit, but also to more specifically regulate, agreements by which a lawyer limits the scope of the representation to be provided to a client. Although a lawyer enters into such agreements in a variety of practice settings, this proposal in part was intended to provide a framework within which a lawyer may expand access to legal services by providing limited but nonetheless valuable legal service to low or moderate-income persons who otherwise would be unable to obtain counsel. See id.

Furthermore, paragraph (c) specifically precludes a limited representation that would not be “reasonable under the circumstances.” Comment 7 to the Model Rule discusses this limitation. In cases in which the limitation is reasonable, the client must give informed consent as defined in Rule 1.0(e). Because a useful limited representation may be provided over the telephone or in other situations in which obtaining a written consent would not be feasible, the proposal does not require that the client’s informed consent be confirmed in writing. Comment 8, however, reminds a lawyer who is charging a fee for a limited representation that a specification of the scope of the representation will normally be a necessary part of the lawyer’s written communication with the client pursuant to Model Rule 1.5(b). See id.

Comments to ABA Model Rule 1.2

Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions. With respect to the means by which the client’s objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client’s behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished capacity, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.

Independence from Client’s Views or Activities

[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s views or activities.

Agreements Limiting Scope of Representation

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

[8] All agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

[10] When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

[13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client’s instructions, the lawyer must consult with the client regarding the limitations on the lawyer’s conduct. See Rule 1.4(a)(5).

Annotations

Formation of Lawyer-Client Relationship

The relationship of lawyer-client is formed contractually and “results only from a clear and express agreement between the parties.” See Spicer v. Gambel, 789 So. 2d 741, 744 (La. Ct. App. 4th Cir. 2001) (citing Keller v. LeBlanc, 368 So. 2d 193 (La. Ct. App. 1st Cir. 1979)); see also Weinstein v. Weinstein, 62 So. 3d 878, 882 (La. Ct. App. 3rd Cir. 2011). A plaintiff can prove formation of this relationship by showing that he sought “advice and assistance” from the lawyer “in matters pertinent to [the lawyer’s] profession,” or by showing that an “agreement of representation has been made under conditions acceptable to both parties.” See Spicer, 789 So. 2d at 744 (citing State v. Green, 493 So. 2d 1178 (La. 1986); Weinstein, 62 So. 3d at 882; Lirette v. Roe, 631 So. 2d 503 (La. Ct. App. 4th Cir. 1994)).

The existence of an attorney-client relationship turns largely on the client’s subjective belief that such a relationship exists. See, e.g., In re LeBlanc, 884 So. 2d 552, 557 (La. 2004); In re Jackson, 842 So. 2d 359, 362 (La. 2003); In re Jones, 779 So. 2d 712, 714 n.3 (La. 2001); LSBA v. Bosworth, 481 So. 2d 567 (La. 1986); St. Paul Fire & Marine Ins. Co. v. GAB Robins N. Am., Inc., 999 So. 2d 72, 77 (La. App. Ct. 4th Cir. 2008); Francois v. Reed, 714 So. 2d 228 (La. Ct. App. 1st Cir. 1998); see also Tristem, Ltd. v. City of New Orleans, 2003 WL 22852214 *1 (E.D. La. 2003). However, a client’s subjective belief must be based on facts known to the lawyer which put the lawyer on reasonable notice that the client may harbor such a belief.1 For example, if a person seeks legal services from a lawyer, a lawyer-client relationship is formed if either the lawyer consents to provide legal services, or fails expressly to decline the representation under circumstances where the lawyer knows or should know that the person reasonably relies on the lawyer to provide the services. See, e.g., Restatement (Third) of the Law Governing Lawyers § 14(1) (2000).

In evaluating whether a lawyer-client relationship exists, the Louisiana Supreme Court has relied upon the standards set forth in the Restatement (Third) the Law Governing Lawyers. See In re Austin, 943 So. 2d 341, 347 (La. 2006) (quoting Restatement (Third) of the Law Governing Lawyers § 14 (2000)); Scranton v. Ashley Ann Energy, L.L.C., 91 So. 3d 1174, 1181 n.12 (La. Ct. App. 2nd Cir. 2012). Under the Restatement, a relationship of lawyer and client arises when (a) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for that person; and either, (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.” See Austin, 943 So. 2d at 347.

Lawyer-Client Agreements

The Louisiana Rules do not require that all lawyer-client agreements be reduced to writing. Rather, the Rules require signed writings only for contingent fee arrangements. See Louisiana Rule 1.5. However, a lawyer should require the client to sign an engagement agreement prior to commencing work. For model lawyer-client agreements (including, among other agreements and provisions, an hourly-fee agreement and a draft arbitration clause), see the table of contents of this book.

Limiting the Scope of a Lawyer’s Representation

Half FullUnder the Louisiana Rules of Professional Conduct, a lawyer “may limit the scope of the representation” if the client consents. See La. Rules of Professional Conduct Rule 1.2(c) (2004); Restatement (Third) of the Law Governing Lawyers § 19(1) (2000)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. The prerequisite of informed consent to a limited representation “is required so that the client will understand the dangers that may be inherent in contracting for limited legal services.” Oklahoma Bar Ass’n v. Green, 936 P.2d 947, 955 (Okl. 1997); see also In re Maternowski, 674 N.E.2d 1287, 1291 (Ind. 1996) (“[M]eaningful consent to a limitation on the lawyer’s scope of representation must be based on full, objective disclosure and unbiased advice”).

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.

Local-Counsel Arrangements

Difficult issues relating to the scope of a lawyer’s representation arise in the context of a Louisiana lawyer acting as “local counsel” for an out-of-state lawyer in a matter pending in a Louisiana court. The term “local counsel” is one that is susceptible of a wide range of meanings. A lawyer acting as “local counsel” performs primarily ministerial functions, while another lawyer is actively involved in handling the matter. For this reason, a lawyer serving as “local counsel” should, at the commencement of the representation, identify the client and carefully define the lawyer’s role in the matter. To do so adequately, the lawyer should consult with both the out-of-state lawyer and the client. Once the lawyer’s role is understood by all, the lawyer should have all interested persons sign a written representation agreement detailing the responsibilities that the lawyer is undertaking as “local counsel.” For a case illustrating the perils associated with undertaking a local counsel arrangement, see Curb Records, Inc. v. Adams & Reese, L.L.P., 1998 U.S. Dist. Lexis 3311 (E.D. La. Mar. 18, 1998), rev’d, 203 F.3d 828 (5th Cir. 1999).

Assisting Client with Crime or Fraud

The black-letter law set forth in this rule is seemingly straightforward. Although a lawyer cannot knowingly help a client commit a crime or perpetrate a fraud, a lawyer is permitted to discuss the legal consequences of “any” proposed course of conduct that the client may be considering. However, discerning the difference between facilitating unlawful conduct and providing permissible legal advice can be problematic in practice. Whether the lawyer has crossed the line, at least for purposes of professional discipline, can turn on the lawyer’s intent in providing the advice in question. For example, if the lawyer offers advice for the purpose of dissuading a client from violating the law, it is unlikely that the lawyer would be disciplined if the client subsequently used the advice to further malevolent ends. See Restatement (Third) of the Law Governing Lawyers § 94(2) (2000) & cmt. c. Likewise, whether the lawyer has crossed the line, again for purposes of professional discipline, can turn on the lawyer’s degree of certainty that the client actually intends to use the legal advice to further an unlawful scheme. A mere suspicion on the part of the lawyer that the client may have such designs should not be enough to warrant discipline. See id. cmt. g.

Assisting Client with Marijuana Distribution Authorized by State Law

In May 2016, Louisiana became the twenty-fifth state to adopt legislation permitting the cultivation, distribution, and use of medical marijuana. LSU and Southern University are gearing up their grow houses and cultivation facilities. Will Louisiana lawyers be able to provide them with legal advice to further their efforts?

The problem is this: marijuana distribution remains a crime under federal law. Louisiana Rule of Professional Conduct 1.2(d) prohibits a lawyer from counseling a client to engage, or assisting a client, “in conduct that the lawyer knows is criminal.” See La. Rules of Prof’l Cond. R. 1.2(d). While the rule allows a lawyer to discuss the “legal consequences” of any proposed course of conduct and to make a “good faith effort to determine the validity, scope, meaning or application of the law,” id., it simply does not allow a lawyer to assist a drug-distribution operation by, for example, drafting contracts with vendors, transporters, suppliers, and the like.

On November 2, 2016, the Louisiana State Bar Association Rule of Professional Conduct Committee debated the issue and declined to recommend an amendment to the Louisiana rules that would have permitted lawyers to give legal advice to LSU and Southern regarding marijuana cultivation and distribution. In so doing, the committee respected the basic federalism principle of supremacy embodied in Article VI § 2 of the United States Constitution. Indeed, if the State of Louisiana were to permit racial discrimination in the workplace in violation of federal civil rights laws, the rules would not allow a lawyer to advise a restaurant as to how to refuse to hire African-American waiters. Allowing advice regarding illicit marijuana cultivation and distribution would have been just as unacceptable in our federal system.

Settlement Authority

The law presumes that a lawyer has authority to engage in settlement negotiations on behalf of a client. See, e.g., Williams v. Williams, No. 2006-CA-0358, 2007 WL 441360, at *7 (La. Ct. App. 1st Cir. 2007); Grimes v. Ciba-Geigy Corp., 684 So. 2d 1159, 1160 (La. Ct. App. 1st Cir. 1996); Singleton v. Bunge Corp., 364 So. 2d 1321, 1325 (La. Ct. App. 4th Cir. 1978). However, a lawyer has absolutely no authority to settle a matter without express client authority. See La. Civ. Code art. 2997(5) (requiring express authority for mandatary to “[e]nter into a compromise or refer a matter to arbitration”); see also In re Beal, 117 So. 3d 501, 503 (La. 2013); In re Schnyder, 918 So. 2d 455, 460 (La. 2006); Grimes, 684 So. 2d at 1160; Fredric Hayes, Inc. v. Rollins, 435 So. 2d 1151 (La. Ct. App. 3d Cir. 1983); Thornton v. Willis, 106 So. 2d 337, 340 (La. Ct. App. 2d Cir. 1958) (holding that even though a settlement was entered into by a lawyer in the “utmost good faith,” the client was not bound because the lawyer did not have express or implied authority to do so); see also Restatement (Third) of the Law Governing Lawyers § 22(1) (2000). Moreover, a lawyer may not sue a client to recover a contingent fee based on a settlement offer that the client imprudently declined to accept. See Culpepper & Carroll, PLLC v. Cole, 929 So. 2d 1224, 1227 (La. 2006) (“regardless of the wisdom of Mr. Cole’s decision, his refusal to accept the settlement was binding on [the lawyer]“), cert. denied, 127 S. Ct. 495 (2006).

Criminal Practice

Under the ABA Standards Relating to the Administration of Criminal Justice, the accused has the ultimate right to make the following decisions: what pleas to enter; whether to accept a plea agreement; whether to waive a jury trial; whether to testify onhis own behalf; and, whether to appeal. See ABA Stds. Relating to the Admin. of Crim. Justice–The Def. Function std. 4–5.2(a); see also Restatement (Third) of the Law Governing Lawyers § 22(1) (2000). However, “strategic and tactical decisions” should be made by the defense lawyer, after consultation with the client to the extent that it is “feasible and appropriate.” Id. std. 4–5.2(b). Such “strategic and tactical” decisions include determining which witnesses to call, whether and how to conduct cross-examination, which jurors to accept or strike, which motions should be made, and what evidence should be introduced. Id.

A lawyer should not attempt to resolve a criminal case by negotiating with a complaining witness to “drop charges” in exchange for money. In In re Sharp, 802 So. 2d 588 (La. 2001), a lawyer was suspended for violating Rule 1.2 for assisting his client “in a scheme to induce the victim in the underlying criminal proceeding to drop the criminal charges in exchange for payment of money.” See id. at 592.

Disciplinary Sanctions

The applicable ABA Standard for Imposing Lawyer Sanctions for violations of Rule 1.2 is Standard 4.4 (lack of diligence). See infra Annotations to Rules 1.3 and 6.1 (false statements, fraud and misrepresentation); Annotations to Rules 3.3-3.4. See ABA Stds. for Imposing Lawyer Sanctions appx. 1 (1992).

Notes

This page was updated on January 18, 2017.

  1. For cases in which courts have declined to find the existence of an attorney-client relationship, see Lirette v. Roe, 631 So. 2d 503, 506 (La. Ct. App. 4th Cir. 1994) (finding no relationship formed “in the absence of any initial communication, either verbal, written or otherwise”); Spicer v. Gambel, 789 So. 2d 741, 744-45 (La. Ct. App. 4th Cir. 2001) (finding no relationship formed by merely filing motion for extension of time for potential client).