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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Louisiana Legal Ethics

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary:

2.1:101      Model Rule Comparison

The text of LRPC 2.1 is identical to that in its counterpart, MR 2.1.

2.1:102      Model Code Comparison

LRPC 2.1 provides that a lawyer shall “exercise independent professional judgment and render candid advice” based on both the law and other considerations. The Model Code has no direct counterpart. EC 7-3 suggests that lawyers may be their client’s advocate and advisor, assisting the client in determining the legal effects of future conduct. EC 7-8 notes that the “advice of a lawyer to his client need not be confined to purely legal considerations.” Instead, the lawyer should use both his personal experience and “objective viewpoint” in his decision-making. Echoing the point that a lawyer’s judgment shall be independent, EC 5-11 and DR 5-107(B) forbid lawyers from allowing their personal interests or the interests of third persons to direct their professional judgment.

2.1:200   Exercise of Independent Judgment

Primary Louisiana References: LA Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary: ABA/BNA § 31:701, ALI-LGL § 151, Wolfram § 4.3

This section has not yet been completed.

2.1:300   Non-Legal Factors in Giving Advice

Primary Louisiana References: LA Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary: ABA/BNA § 31:701, ALI-LGL § 151, Wolfram § 4.3

This section has not yet been completed.

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary:

2.2:101      Model Rule Comparison

The language of LRPC 2.2 was adopted directly from MR 2.2.

2.2:102      Model Code Comparison

LRPC 2.2(a) provides that a lawyer may act as an intermediary between his clients after consulting with each client and obtaining their permission if the lawyer believes he represents each client impartially and that the dispute can be resolved in both clients’ best interest with little risk to each client. The Model Code has no provision which explicitly addresses the lawyer as intermediary. The closest provision is EC 5-20 which requires that the lawyer reveal his present or past relationships with the clients before undertaking employment as a mediator or arbitrator between the parties.

LRPC 2.2(a)(1) requires the lawyer who wants to act as an intermediary to consult each client on the implications of common representation. The provisions of the Model Code, on the other hand, address the lawyer’s representation of clients. While representing two clients and acting as a mediator between the two are vastly different concepts, the Model Code provisions on representation are the most closely related rules to LRPC 2.2. EC 4-2 allows a lawyer to reveal confidential client information with the client’s consent. This notion plays an essential part of LRPC 2.2(a) since a lawyer cannot mediate between two clients without revealing some degree of information.

EC 5-14 prevents a lawyer from accepting employment that will adversely affect his loyalty to his client, noting that this problem presents itself whenever a lawyer is presented with the representation of two or more clients. LRPC 2.2(a)(3) addresses this issue by requiring that the attorney have a reasonable belief that representation can be undertaken without improper effect on any client before he accepts common representation. EC 5-15 warns that there are few instances in a litigation setting in which the lawyer may properly represent multiple clients with differing interests, noting that the lawyer’s judgment should not be “impaired” or “divided.” DR 5-105(C) allows multiple representation only “if it is obvious that the lawyer can adequately represent the interest of each and if each consents to the representation after full disclosure.” These concerns are stated in LRPC 2.2(a).

LRPC 2.2(a)(1) and (2) require that the lawyer consult with the clients regarding the implications of common representation and each client’s ability to make informed decisions before qualifying to act as an intermediary. LRPC 2.2(b) imposes a continuing duty upon the lawyer already acting in such a capacity. LRPC 2.2(b) requires the lawyer as intermediary to consult with each client so as to allow them to make informed decisions regarding the representation.

EC 5-16 more closely follows LRPC 2.2(a) by requiring a lawyer to consult with his clients and obtain their consent before the representation ensues. EC 5-16 suggests that the lawyer should also reveal to each client any other circumstances which might cause the clients to question the “undivided loyalty of the lawyer.” EC 7-8 suggests that a lawyer exert his best efforts to insure that his client’s decisions are informed, advising the lawyer to initiate this decision-making process if the client does not. Finally, EC 9-2 advises lawyers to avoid the appearance of impropriety and to “inform his client of material developments in the matters being handled for the client.”

LRPC 2.2(c) provides the circumstances under which a lawyer must resign as intermediary, noting that, after withdrawal, the lawyer may not represent either party in the matter that was the subject of the mediation. The Model Code has no counterpart to this provision. The most similar provision is DR 5-105(B), which forbids a lawyer from continuing representation when his professional judgment on behalf of his client would be adversely affected or where it would lead to representation of differing interests. DR 5-105(C) allows the lawyer to engage in this sort of representation with the client’s consent if it is obvious that the lawyer can represent multiple clients adequately. LRPC 2.2(c) also requires that the lawyer withdraw at the request of any client or if the requirements for representation are no longer satisfied. Similarly, EC 5-19 requires the lawyer to withdraw when his client questions his loyalty, regardless of the lawyer’s belief that he can properly maintain the representation.

2.2:200   Relationship of Intermediation to Joint Representation

Primary Louisiana References: LA Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram §§ 8.7, 13.6

This section has not yet been completed.

2.2:300   Preconditions to Becoming an Intermediary

Primary Louisiana References: LA Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

This section has not yet been completed.

2.2:400   Communication During Intermediation

Primary Louisiana References: LA Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

This section has not yet been completed.

2.2:500   Consequences of a Failed Intermediation

Primary Louisiana References: LA Rule 2.2
Background References: ABA Model Rule 2.2, Other Jurisdictions
Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

This section has not yet been completed.

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary:

2.3:101      Model Rule Comparison

The text of LRPC 2.3 is identical to that in its counterpart, MR 2.3.

2.3:102      Model Code Comparison

LRPC 2.3 details the circumstances under which a lawyer may evaluate a matter for a third person’s use and its effect on his client. The Model Code has no counterpart.

2.3:200   Undertaking an Evaluation for a Client

Primary Louisiana References: LA Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4

This section has not yet been completed.

2.3:300   Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

Primary Louisiana References: LA Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4.4

This section has not yet been completed.

2.3:400   Confidentiality of an Evaluation

Primary Louisiana References: LA Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4.3

This section has not yet been completed.

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101      Model Rule Comparison

Louisiana has not adopted the new model rule.

2.4:200   Definition of "Third-Party Neutral"

Primary Louisiana References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

Louisiana has not adopted the new model rule.

2.4:300   Duty to Inform Parties of Nature of Lawyer's Role

Primary Louisiana References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

Louisiana has not adopted the new model rule.

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