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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

The text of LRPC 4.1 is identical to that in its counterpart, MR 4.1.

4.1:102      Model Code Comparison

LRPC 4.1 prevents a lawyer from knowingly making false statements of fact or law to a third person, including an obligation to disclose material facts when such disclosure is necessary to “avoid assisting a criminal or fraudulent act by a client.” Likewise, DR 7-102(A)(5) prevents a lawyer from knowingly making “a false statement of law or fact” to anyone. Additionally, DR 7-102(A)(7) prevents a lawyer from assisting his client in perpetrating conduct that he knows is “illegal or fraudulent.” DR 7-102(B) exceeds the requirements of LRPC 4.1 by requiring a lawyer who knows that his client has perpetrated a fraud upon a third person to call upon his client to rectify the situation and, if the client fails to do so, rectify the situation personally unless the information is a privileged communication. In Louisiana, the lawyer is obliged to rectify fraudulent statements only where his client has perpetrated fraud upon a tribunal, pursuant to LRPC 3.3(a)(2), discussed in Section 3.3:101 and 3.3:102.

4.1:200   Truthfulness in Out-of-Court Statements

Primary Louisiana References: LA Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL § 157

This section has not yet been completed.

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary Louisiana References: LA Rule 4.1(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL §§ 117A, 151, Wolfram §§ 12.6, 13.3

This section has not yet been completed.

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

LRPC 4.2 and MR 4.2 both limit lawyers’ communications regarding the subject of a matter with persons represented in that matter. Unlike its Louisiana counterpart, MR 4.2 does not prevent the lawyer from making such communications through third parties. Additionally, while LRPC 4.2 addresses communications with “parties,” MR 4.2 addresses communications with “persons.”

4.2:102      Model Code Comparison

LRPC 4.2 prevents a lawyer from communicating with another party, either directly or through another person, about the subject matter of his representation without the permission of that party’s counsel when the party is represented in the matter. DR 7-104(A)(1) prohibits the same type of communication.

4.2:200   Communication with a Represented Person

Primary Louisiana References: LA Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA § 71:301, ALI-LGL § 158-162, Wolfram § 11.6.2

This section has not yet been completed.

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

This section has not yet been completed.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

This section has not yet been completed.

4.2:230      Communications "Authorized by Law" -- Other

This section has not yet been completed.

4.2:240      Communication with a Represented Government Agency or Officer

This section has not yet been completed.

4.2:250      Communication with a Confidential Agent of Non-Client

This section has not yet been completed.

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

While LRPC 4.3 requires lawyers to assume unrepresented persons do not “understand the lawyer’s role in the matter,” MR 4.3 does not. Instead, MR 4.3 forbids a lawyer from implying or stating to this unrepresented person that he is disinterested and requires the lawyer to make “reasonable efforts to correct the misunderstanding” when he knows or should know that such a misunderstanding exists. LRPC 4.3 has no such requirement. Instead, it states that lawyers should refrain from advising non-represented persons outside of advising them to retain counsel. While this suggestion is not found in the Model Rule, it does appear in Comment 1 to MR 4.3.

4.3:102      Model Code Comparison

The first sentence of LRPC 4.3 requires a lawyer to assume that “an unrepresented person does not understand the lawyer’s role in the matter.” The Model Code requires no such assumption. LRPC 4.3 also prevents a lawyer from advising a non-represented person except to give “advice to obtain counsel.” Likewise, DR 7-104(A)(1) prevents a lawyer from communicating or causing another person to communicate with a person who is represented in a matter regarding that matter unless the lawyer has permission from counsel or is authorized to do so. Additionally, DR 7-104(A)(2) prevents a lawyer from advising someone who is unrepresented, but only when that person’s interests “are or have a reasonable possibility of being in conflict with the interests of his client.” The Louisiana Rule has no counterpart to this latter condition.

4.3:200   Dealing with Unrepresented Person

Primary Louisiana References: LA Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA § 71:501, ALI-LGL § 163, Wolfram § 11.6.3

This section has not yet been completed.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

The text of LRPC 4.4 is identical to that in its counterpart, MR 4.4.

4.4:102      Model Code Comparison

LRPC 4.4 prevents a lawyer from representing his client using means that “have no substantial purpose other than to embarrass, delay or burden a third person” and absolutely prohibits the gathering of evidence in a way that violates the “legal rights” of a third person. While the Model Code has no clear counterpart, there are various provisions which prohibit similar conduct. Addressing the issue of embarrassing a third party, DR 7-106(C)(2) prevents a lawyer before a tribunal from asking irrelevant questions “intended to degrade a witness or other person.” DR 7-108(D) and (F) prevent a lawyer from harassing or embarrassing a juror or his family. The Model Code also prohibits delay tactics. DR 7-102(A)(1) prevents a lawyer from taking any action, including delaying a trial, “when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” DR 7-101(A)(1) provides that a lawyer does not fail in pursuing the lawful objectives of his client by “being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.” While the Model Code does not expressly prohibit burdening a third party or violating his legal rights, DR 2-110(B)(1) provides that a lawyer shall withdraw from representation if he knows or it is obvious that the sole purpose of the representation is to harass or maliciously injure any person. EC 7-10 also imposes an obligation upon lawyers to “treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.”

4.4:200   Disregard of Rights or Interests of Third Persons

Primary Louisiana References: LA Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA § 71:101, ALI-LGL §§ 163, 166, 167, Wolfram § 12.4.4

This section has not yet been completed.

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

This section has not yet been completed.

4.4:220      Threatening Prosecution [see 8.4:900]

This section has not yet been completed.

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