In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

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 2.1 (2002).

Comments to ABA Model Rule 2.1

Scope of Advice

[1] A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

[4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer’s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.

Offering Advice

[5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client’s course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.

Annotations

Generally

Rule 2.1 is the first of three rules addressing a lawyer’s duties when serving as a “counselor.” When acting as a counselor or advisor, a lawyer “provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.” See Model Rules of Prof’l Conduct Preamb. ¶ 2 (Am. Bar Ass’n 2002).

Under Rule 2.1, a lawyer must exercise “independent professional judgment” and render “candid advice” to the client. In rendering candid advice, the lawyer may refer not only to the law and facts directly relevant to the client’s matter, but also to any other pertinent considerations, including “moral, economic, social and political factors.” La. Rules of Prof’l Conduct R. 2.1 (2004).

Candid Advice

In rendering candid advice, the lawyer must give the client an honest opinion regarding the merits of the client’s matter. The lawyer should not simply tell the client what the client wants to hear. For example, if the lawyer believes that the client’s claim, although not frivolous, is unlikely to succeed, then the lawyer must tell the client so.

Sexual Relationships With Clients

This rule’s requirement that a lawyer exercise “independent professional judgment” is a corollary of the conflicts-of-interest rules mandating that a lawyer not compromise the loyalty owed to all clients. The Louisiana Supreme Court has disciplined lawyers who have violated this rule, among others, by compromising their “independent professional judgment” and emotional detachment through becoming involved in inappropriate personal or sexual relationships with their clients. In two disciplinary proceedings, In re Ashy, 721 So. 2d 859 (La. 1998), and In re Schambach, 726 So. 2d 892 (La. 1999), the court acknowledged that the current Louisiana Rules of Professional Conduct include no provisions specifically prohibiting Louisiana lawyers from engaging in sexual relations with their clients. Nevertheless, in each case, the court concluded that the particular sexual relationship in issue substantially interfered with the lawyer’s professional responsibilities.1 See also In re DeFrancesch, 877 So. 2d 71 (La. 2004) (sanctioning lawyer for inappropriate sexual relations with client despite the existence of a preexisting relationship); In re Ryland, 985 So. 2d 71, 73-74 (La. 2009) (suspending a lawyer 90 days for engaging in a consensual sexual relationship with the client while representing the client in a divorce proceeding despite the absence of actual harm).

In Ashy, the court found that the respondent attempted to engage in a sexual relationship with his client “in exchange for certain efforts he would exert on her behalf as her lawyer.” Ashy, 721 So. 2d at 864. In a thorough and exhaustive review of the case law and commentary on the issue of client sexual relations, the court held that the respondent’s conduct violated several rules set forth in the Louisiana Rules of Professional Conduct. First, the court held that the respondent violated Rule 1.7 because his representation was materially limited and adversely affected by his own interest in engaging in a sexual relationship with his client. Id. at 867. Second, the court found that the respondent’s conduct violated Rule 2.1 because he failed to exercise “independent professional judgment” on behalf of his client. Id. at 867. Finally, the court found that the respondent’s conduct violated Rule 8.4 because his actions violated the Rules of Professional Conduct, involved dishonesty and misrepresentation, and reflected that he was unworthy of the confidence reposed in him by his client. Id. at 867-68. As a result of these violations, the court suspended the respondent from the practice of law for a period of two years. Id. at 868.

In Schambach, the respondent engaged in a mutual and consensual sexual relationship with his client. Schambach, 726 So. 2d at 894. Furthermore, the respondent borrowed a substantial sum of money from his client, and then had failed to pay it back until “the eve of the [disciplinary] committee hearing.” Id. at 894. As in Ashy, the court held that the “respondent violated the Rules of Professional Conduct by allowing his personal relationship with [his client] to interfere with his professional responsibilities toward her.” Id. at 896. For this reason, the court suspended the respondent from the practice of law for a period of three years. Id.; see also In re Touchet, 753 So. 2d 820, 823 (La. 2000) (“By attempting to sexually exploit his clients, respondent unquestionably violated his professional duty to protect their interests.”); In re Withers, 747 So. 2d 514 (La. 1999) (suspending a lawyer for six months for, among other things, becoming involved in a “highly improper relationship” with her client). See generally ABA Comm’n on Ethics and Prof’l Responsibility, Formal Op. 92-364 (1992).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving violations of Rule 2.1: disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed as a professional, and causes little or no actual or potential injury to a client, the public or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1992).

Notes

This page was updated on January 18, 2017.

  1. Even sexual relationships between lawyers and clients that are not coercive can result in discipline as a result of the “potential to create a conflict of interest.” In re Gore, 752 So. 2d 853, 856 (La. 2000).