Syndicated legal cartoonist, Stu, in 2002 showed the first line of a “discount” lawyer’s opening statement to the jury: “My client is totally innocent of a few of the charges.” The client may have wondered who was representing him on the rest of the charges.
The problem
Whether or not intended by Stu, the cartoon illustrates the problem for clients when their lawyer limits the scope of his representation. Clients want their lawyer to represent them and generally have little appreciation for the impact of any limitation.
ABA Model Rule 1.2(c) requires any limitation to be “reasonable” and the client to give “informed consent.” Whether that requirement actually protects the client depends on the conscientiousness of the lawyer. A few examples illustrate.
May a law firm preclude acting adversely to another client?
This limitation can arise when a law firm already represents two clients who could become adverse to each other in a matter. To avoid the potential future conflict, the law firm agrees to represent one of the clients on the matter but limits the scope so that it cannot act adversely to the other client.
ABA Model Rule 1.2(c) contemplates that any such limitation does not exempt the law firm from the obligations of “competent” and “diligent” representation. These obligations, in turn, require the law firm to meet the standard of care and to do whatever is required to represent the client. If suing the other client would ordinarily be what was required under the standard of care, the limitation is improper. Yet, the rule also contemplates that the limitation itself is a factor to consider in determining competence and diligence!
May a law firm limit an established scope of representation?
This limitation can occur when a law firm already represents a client but then attempts to narrow the scope (eg., as in the above example to preclude suing another client). While the ABA Model Rules do not expressly address the situation, in combination with a lawyer’s common law fiduciary duty to a client, Model Rule 1.8 provides an analogy.
Model Rule 1.8 requires a lawyer seeking to enter into a “business transaction” with a client to advise the client in writing to seek other legal counsel. The rule focuses on the need to protect a client in an established fiduciary relationship in which the client is otherwise likely to rely on the lawyer’s recommendation. By analogy, any effort by a law firm to change the scope of an established relationship in a material way should require the law firm to advise the client in writing to seek other counsel before giving an informed consent.
May a law firm limit the information it must disclose to a client?
This limitation typically arises when the law firm represents two or more clients that have competing business or legal interests. The limitation directly involves the interaction among the law firm’s duties relating to confidentiality, communication, and ethical conflicts.
Every lawyer is obligated under ABA Model Rule 1.6(a) to maintain confidential all information related to the representation. Every lawyer is also obligated under Rule 1.4(b) “to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The problem occurs when the law firm has information arising out of the representation of one client “reasonably necessary” to representing another client. That problem can lead to a conflict of interest requiring the lawyer to withdraw from representing one or both clients.
This problem becomes acute when the law firm tries to preempt it by expressly limiting its obligation to disclose information to one client. The law firm’s fiduciary duty and the ABA in a formal opinion make clear that a law firm cannot avoid a conflict of interest in this way.
May a law firm exclude specific tasks from a representation?
ABA Model Rule 1.2(c) aimed at permitting law firms to “unbundle” their services to clients. Instead of automatically representing clients in all matters law firms could specify by reasonable agreement and informed consent what they would do for their clients.
So, the general answer to this question is yes. But, a specific answer still requires consideration of what a reasonably prudent and competent lawyer would need to do to meet the standard of care. And, of course, the rules expressly require the client’s informed consent, which the lawyer “may not assume from a client’s or other person’s silence.”
Conclusion
There are multiple relationships that “informed consent” can theoretically permit but which it would be imprudent for a law firm to undertake. Any attempt to limit scope that also involves representation of multiple clients on the same matter, waiver of conflict, or a material change in the fiduciary relationship falls into this category. And, the attempt may create a basis for liability to a client with damage claims.