Limiting the Scope of Representation: Times of Crisis Call for Heightened Caution

• Jurisdiction: California,United States
• Author: By Elizabeth L. Bradley
• Publication year: 2020
• Citation: Vol. 26 No. 2

Limiting the Scope of Representation: Times of Crisis Call for Heightened Caution

By Elizabeth L. Bradley

Elizabeth L. Bradley is a partner with Rosen Saba, LLP, in Beverly Hills, where her practice focuses on legal malpractice and employment litigation. She is a Founding Member of the California Lawyers Association Ethics Committee, and is the Vice Chair of the LACBA Professional Responsibility and Ethics Committee.

It is too early to appreciate the magnitude of changes to the legal profession that the Covid-19 pandemic will cause. Lawyers and clients alike will face a new reality when the dust settles and we get back to "business as usual," whatever that term will come to mean. In the meantime, many lawyers are being called upon to provide advice to new and existing clients looking for guidance in these troubling times. Oftentimes, especially in times of crisis, lawyers are asked for advice which is either outside the lawyer's normal area of practice, or outside the scope of an existing lawyer-client relationship. While it is important to be of service in these critical times, it is also important to ensure that the scope of the intended representation is clearly defined and understood by the lawyer and client alike, in order to avoid unnecessary injury to the client and risk to the lawyer.

California Rules of Professional Conduct, rule 1.2, Scope of Representation and Allocation of Authority, went into effect on November 1, 2018.¹ One of rule 1.2's primary objectives is to clarify the relationship between lawyer and client. Rule 1.2, paragraph (b), authorizes a lawyer to "limit the scope of representation if the limitation is reasonable under the circumstances, is not otherwise prohibited by law, and the client gives informed consent."² Comment [4], which is not part of the rule but which provides guidance regarding its application, provides that all agreements concerning a lawyer's representation of a client must be in accord with the Rules of Professional Conduct and other law.

Though rule 1.2, paragraph (b), has no direct counterpoint in the former Rules of Professional Conduct, existing case law has long authorized an attorney to limit the scope of the representation.³ The rule is substantially similar to existing American Bar Association Model Rule of Professional Conduct 1.2, paragraph (c).⁴ Lawyers frequently seek to limit the scope of a representation for a variety of reasons. These might include a lack of knowledge or experience in a practice area, the need for particular expertise, or the lawyer's or client's limited resources. Examples of related matters that an attorney might seek to exclude from a representation include; transactional matters related to a litigation or vice versa, matters where a specialist may be needed, such as tax, bankruptcy, antitrust, estate planning, and regulated businesses (liquor licenses, gaming licenses) matters, appellate matters, potential legal malpractice claims against current or former counsel, insurance matters such as the potential existence or applicability of insurance coverage or the potential bad faith denial of insurance coverage, potential affirmative cross-claims or third-party claims where counsel is retained by an insurer to defend an insured under a policy of insurance, or advice as to potential claims against the employer when the employer hires counsel to represent an individual...