Louisiana Legal Ethics

1.2 Rule 1.2 Scope of Representation

1.2:100 Comparative Analysis of Louisiana Rule

¥ Primary Louisiana References: LA Rule 1.2
¥ Background References: ABA Model Rule 1.2, Other Jurisdictions
¥ Commentary:

1.2:101 Model Rule Comparison

LRPC 1.2(a) sets forth generally that, while both the lawyer and client have responsibilities regarding the representation, the clientÕs authority regarding the purposes of the legal representation supersedes that of the lawyer. While the idea set forth in LRPC 1.2(a) came from the Model Rules, the Louisiana Legislature did not adopt the language of MR 1.2(a). Instead, the first two sentences of Comment 1 to MR 1.2(a) were adopted. Thus, a conscious effort was made to leave some of the specific areas mentioned in MR 1.2(a) unregulated. For example, MR 1.2(a) explicitly requires that the lawyer consult with his client concerning the means by which the representation will be executed and instructs lawyers to abide by their clientÕs decision on settlement offers.

In the criminal context, MR 1.2 (a) requires attorneys to abide by their clientÕs decisions pertaining to pleas, the use of a jury trial and whether the client will testify. LRPC 1.2 has no regulations directing the criminal process.

MR 1.2(b) provides that a lawyerÕs representation of a client does not constitute an endorsement of his clientsÕ views. LRPC 1.2 has no counterpart.

LRPC 1.2(b) is identical to MR 1.2(c). Both allow the lawyer to limit the objectives of representation with the clientÕs consent. LRPC 1.2(c) mirrors MR 1.2(d). Both provide that a lawyer is forbidden from knowingly providing legal advice regarding his clientÕs involvement in illegal activity although he may counsel on the meaning of laws. LRPC 1.2(d) is identical to MR 1.2(e), requiring a lawyer to advise his client, in certain situations, on the limits placed on his professional conduct by professional rules.

1.2:102 Model Code Comparison

LRPC 1.2(a) provides that the lawyer is responsible for the objectives and means of the representation while the client defines the purposes to be served by the representation within the bounds of the law and the lawyerÕs professional obligations. In the Model Code, DR 7-101(A)(1) prohibits attorneys from intentionally failing to pursue their clientsÕ lawful objectives by permissible and reasonably available means. When an attorney disagrees with his client as to vital parts of the representation, EC 5-12 and 7-7 provide that the clientÕs decision controls. There are no provisions in the Model Code which address the attorneyÕs responsibility for the objectives and means of the representation.

LRPC 1.2(b) allows a lawyer to limit the objectives of representation only if the client consents after consultation. Although the Model Code has no direct counterpart, its closest corollary is found in DR 7-101(B)(1) which allows a lawyer to use his or her professional judgment in waiving or failing to assert rights or positions of his or her client. Additionally, EC 7-8 charges a lawyer to insure that his clientÕs decisions are fully informed, even if the lawyer has to initiate the decision-making process. The Model Code provisions set forth in the previous paragraph also make clear that the client is responsible for setting the objectives of the representation. Therefore, the Model Code imposes an obligation upon attorneys to insure that their clientÕs decisions about their representation are informed ones, but does not limit the lawyerÕs control over the objectives of representation like LRPC 1.2(b).

LRPC 1.2(c) forbids a lawyer from assisting his client in conduct that the lawyer knows is criminal or fraudulent. Nevertheless, Paragraph (c) allows lawyers to discuss the legal consequences of proposed courses of conduct and the Òvalidity, scope, meaning or application of the law.Ó Likewise, DR 7-102(A)(7) and (8) prevent a lawyer from assisting his client in committing illegal or fraudulent acts and from knowingly engaging in illegal conduct or conduct which violates the Disciplinary Rules. DR 7-101(B)(2) is broader than LRPC 1.2 because it allows a lawyer to refuse to participate in conduct he merely believes to be unlawful.

In situations where the lawyer knows the clientÕs expectations of representation exceed the bounds allowed under the rules of professional conduct, LRPC 1.2(d) requires that the lawyer in Louisiana advise the client of the professional limitations restricting his or her conduct. There is no counterpart to this provision in the Model Code.

1.2:200 Creating the Client-Lawyer Relationship

¥ Primary Louisiana References: LA Rule 1.2
¥ Background References: ABA Model Rule 1.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:101, ALI-LGL ¤¤ 26-29A, Wolfram ¤ 9.2