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.