Ethics for New Lawyers: Who is my client? The Scope of Representation and Allocation of Authority Under RPC 1.2
Oddly enough, many lawyers forget this very important point somewhere along the way of working on a matter and it can get them into a lot of hot water. It is so important to the practice of law that it is the second of the Rules of Professional Conduct [1](“RPC”) and it requires the practitioner to define the scope of a lawyer’s representation and the allocation of an attorney’s authority to act on behalf of a client.
Since the lawyer has a duty of “undivided” loyalty to each client, they undertake to represent, focusing on exactly who the attorney will be representing and for what ultimate purpose at the outset of the representation helps to guide the lawyer’s actions throughout the case. If a lawyer has more than one individual or entity seeking representation on the same matter, it becomes more challenging for the lawyer to fulfill that duty to each client, and requires the written informed consent and waiver of potential conflicts of each represented party to proceed.
Therefore, analyzing the needs and goals of each client at the outset of any representation for the purpose of determining whether or not there is a conflict between the best interests of one client and another is crucial to the attorney’s ability to fulfill the duty of loyalty. It will also inform the attorney as to possible limitations in the scope of the representation that is undertaken. If there is to be any legal limitation to the representation, the client’s informed consent must be obtained. This means that it must be explained to the client(s), clearly stated in writing, and agreed to by each client. Otherwise, it is the attorney’s responsibility to safeguard “at every peril to him or herself” the interests and confidences of each client.
RPC 1.2 requires that a lawyer abide by a client’s decisions concerning the objectives of representation following a reasonable consultation with the client as to how the objectives are to be pursued.[2] If the lawyer has more than one client, all of the clients must be consulted, and it is ultimately each client’s decision as to how to proceed.
If the lawyer doesn’t get a single set of instructions from the clients, the lawyer will not be able to continue the representation of all of them together without violating RPC 1.2. Having the joint clients “delegate” one among them to communicate with the lawyer does not negate the lawyer’s duty to analyze the best interests of each client at each stage of the representation and to ensure that the action being directed by the delegate is approved by each of the clients after a full explanation of the decision and its effect on them. This conundrum is yet another reason for defining exactly who the client is in the retention agreement and a good reason for having only a single client in any representation.
For example, say that two individuals consult an attorney to form a legal entity in which each individual will have an interest. Who is the client whose interests the lawyer is charged with protecting? One or both individuals?[3]The ultimate but as-yet unformed entity? Will the identity of the client change once the entity exists?[4]
If the written legal services agreement and the informed consent and waiver do not clearly define the identity(-ies) of the client(s), and one of the individual clients later wants to undertake action that is against the wishes or the best interests of the other individual client(s) and/or the entity, the lawyer cannot continue to represent anyone. A lawyer cannot mediate disagreements among clients, nor may a lawyer side with one client against the other(s) in any such dispute. Attorneys protect not just themselves by having a clear, written description of who the client is in the legal services agreement, but they protect the clients, as well, by informing them they may have to hire separate counsel should a dispute arise among the clients.
Consider this hypothetical: You are an associate working on a matter involving your law firm’s representation of multiple clients. You see a situation in which each client is not being properly consulted on decisions that must be made or that some clients’ interests are being harmed or may be harmed by a particular action your supervising attorney is taking or about to take on behalf of another of the clients. Or, your supervising attorney is taking actions without consulting and obtaining the clients’ permission to do so, as required by RPC 1.2?
A review of RPC 5.2, “Responsibilities of a subordinate lawyer,” is instructive in the above situation. It states: “(a) A lawyer shall comply with these rules and the State Bar Act notwithstanding that the lawyer acts at the direction of another lawyer or other person.”[5] The only exception to a subordinate lawyer’s duty to comply with the RPCs and the State Bar act is where the subordinate lawyer “acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” (RPC 5.2 (b).)
The comments to RPC 5.2 make clear that if a subordinate lawyer believes the supervisor’s proposed resolution of a question of professional duty would result in a violation of these rules or the State Bar Act, the subordinate is required to communicate their own professional judgment to the supervisory lawyer. In that case, the supervisory lawyer will be held responsible for the violation. A subordinate lawyer should also be familiar with RPC 5.1, which defines the responsibilities of a supervisory lawyer.
[1] Only following the first Rule, 1.1 “Competence”.
[2] Limited by RPC 1.2.1’s requirements that no lawyer may advise or assist a client in violating the law.
[3] In this author’s opinion, it is never a good idea for an attorney to represent more than one client, even with a conflict waiver, because there is always the potential for a dispute among them. Conflicts of interest and improper or incomplete informed consent is probably one of the major causes of professional negligence suits.
[4] The above-described concerns that could arise in a joint representation should also be fully detailed in the conflict waivers provided to each client at the outset of the representation.
[5] There is no “I was just an associate” defense to a State Bar discipline complaint or a malpractice/breach of fiduciary duty case by a client. Each lawyer has a duty to follow the RPCs and State Bar Act with respect to each client.