Rule 1.2. Scope of Representation

Alabama Rules of Professional Conduct

Client-Lawyer Relationship

Rule 1.2.

Scope of Representation.

(a)

A lawyer shall abide by a client's decisions concerning the objectives of

representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as

to the means by which they are to be pursued. A lawyer shall abide by a client's decision

whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall

abide by the client's decision, after consultation with the lawyer, as to a plea to be entered,

whether to waive jury trial and whether the client will testify.

(b)

A lawyer's representation of a client, including representation by

appointment, does not constitute an endorsement of the client's political, economic, social

or moral views or activities.

(c)

A lawyer may limit the scope of the representation if the limitation is

reasonable under the circumstances and the client gives informed consent.

(1)

The client’s informed consent must be confirmed in writing unless:

(i)

the representation of the client consists solely of telephone

consultation;

(ii)

the representation is provided by a lawyer employed by a nonprofit

legal-services program or participating in a pro bono program approved by

the Alabama State Bar pursuant to Rule 6.6 and the lawyer’s representation

consists solely of providing information and advice or the preparation of

legal documents; or

(iii)

the court appoints the attorney for a limited purpose that is set forth

in the appointment order.

(2)

If the client gives informed consent in writing signed by the client, there

shall be a presumption that:

(i)

the representation is limited to the attorney and the services

described in the writing; and

(ii)

the attorney does not represent the client generally or in matters

other than those identified in the writing.

y for a limited purpose that is set forth

in the appointment order.

(2)

If the client gives informed consent in writing signed by the client, there

shall be a presumption that:

(i)

the representation is limited to the attorney and the services

described in the writing; and

(ii)

the attorney does not represent the client generally or in matters

other than those identified in the writing.

(d)

A lawyer shall not counsel a client to engage, or assist a client, in conduct

that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal

consequences of any proposed course of conduct with a client and may counsel or assist

a client to make a good faith effort to determine the validity, scope, meaning or application

of the law.

(e)

When a lawyer knows that a client expects assistance not permitted by the

Rules of Professional Conduct or other law, the lawyer shall consult with the client

regarding the relevant limitations on the lawyer's conduct.

[Amended eff. 3-26-2012]

Comment

Scope of Representation

Both Lawyer and client have authority and responsibility in the objectives and

means of representation. The client has ultimate authority to determine the purposes

to be served by legal representation, within the limits imposed by law and the lawyer's

professional obligations. Within those limits, a client also has a right to consult with the

lawyer about the means to be used in pursuing those objectives. At the same time, a

lawyer is not required to pursue objectives or employ means simply because a client

may wish that the lawyer do so. A clear distinction between objectives and means

sometimes cannot be drawn, and in many cases the clientlawyer relationship partakes

of a joint undertaking. In questions of means, the lawyer should assume responsibility

for technical and legal tactical issues, but should defer to the client regarding such

questions as the expense to be incurred and concern for third persons who might be

adversely affected

nction between objectives and means

sometimes cannot be drawn, and in many cases the clientlawyer relationship partakes

of a joint undertaking. In questions of means, the lawyer should assume responsibility

for technical and legal tactical issues, but should defer to the client regarding such

questions as the expense to be incurred and concern for third persons who might be

adversely affected. Law defining the lawyer's scope of authority in litigation varies

among jurisdictions.

In a case in which the client appears to be suffering mental disability, the

lawyer's duty to abide by the client's decisions is to be guided by reference to Rule

1.14.

Independence from Client's Views or Activities

Legal representation should not be denied to people who are unable to afford

legal services, or whose cause is controversial or the subject of popular disapproval.

By the same token, representing a client does not constitute approval of the client's

views or activities.

Services Limited in Objectives or Means

The objectives or scope of services provided by a lawyer may be limited by

agreement with the client or by the terms under which the lawyer's services are made

available to the client. For example, a retainer may be for a specifically defined

purpose. Representation provided through a legal aid agency may be subject to

limitations on the types of cases the agency handles. When a lawyer has been retained

by an insurer to represent an insured, the representation may be limited to matters

related to the insurance coverage. The terms upon which representation is undertaken

may exclude specific objectives or means. Such limitations may exclude objectives or

means that the lawyer regards as repugnant or imprudent.

An agreement concerning the scope of representation must accord with the

Rules of Professional Conduct and other law

red, the representation may be limited to matters

related to the insurance coverage. The terms upon which representation is undertaken

may exclude specific objectives or means. Such limitations may exclude objectives or

means that the lawyer regards as repugnant or imprudent.

An agreement concerning the scope of representation must accord with the

Rules of Professional Conduct and other law. Thus, the client may not be asked to

agree to representation so limited in scope as to violate Rule 1.1, or to surrender the

right to terminate the lawyer's services or the right to settle litigation that the lawyer

might wish to continue.

Criminal, Fraudulent, and Prohibited Transactions

A lawyer is required to give an honest opinion about the actual consequences

that appear likely to result from a client's conduct. The fact that a client uses advice in

a course of action that is criminal or fraudulent does not, of itself, make a lawyer a

party to the course of action. However, a lawyer may not knowingly assist a client in

criminal or fraudulent conduct. There is a critical distinction between presenting an

analysis of legal aspects of questionable conduct and recommending the means by

which a crime or fraud might be committed with impunity.

When the client's course of action has already begun and is continuing, the

lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the

client's wrongdoing, except where permitted by Rule 1.6. However, the lawyer is

required to avoid furthering the purpose, for example, by suggesting how it might be

concealed. A lawyer may not continue assisting a client in conduct that the lawyer

originally supposes is legally proper but then discovers is criminal or fraudulent.

Withdrawal from the representation, therefore, may be required.

Where the client is a fiduciary, the lawyer may be charged with special

obligations in dealings with a beneficiary

ose, for example, by suggesting how it might be

concealed. A lawyer may not continue assisting a client in conduct that the lawyer

originally supposes is legally proper but then discovers is criminal or fraudulent.

Withdrawal from the representation, therefore, may be required.

Where the client is a fiduciary, the lawyer may be charged with special

obligations in dealings with a beneficiary.

Paragraph (d) applies whether or not the defrauded party is a party to the

transaction. Hence, a lawyer should not participate in a sham transaction; for example,

a transaction to effectuate criminal or fraudulent escape of tax liability. Paragraph (d)

does not preclude undertaking a criminal defense incident to a general retainer for

legal services to a lawful enterprise. The last clause of paragraph (d) recognizes that

determining the validity or interpretation of a statute or regulation may require a course

of action involving disobedience of the statute or regulation or of the interpretation

placed upon it by governmental authorities.

Comparison with Former Alabama Code of Professional Responsibility

Paragraph (a) has no counterpart in the Disciplinary Rules. EC 7-7 stated: “In

certain areas of legal representation not affecting the merits of the cause or

substantially prejudicing the rights of a client, a lawyer is entitled to make

decisions on his own. But otherwise the authority to make decisions is exclusively

that of the client ....” EC 7-8 stated that “[i]n the final analysis, however, the ...

decision whether to forego legally available objectives or methods because of

nonlegal factors is ultimately for the client.... In the event that the client in a

nonadjudicatory matter insists upon a course of conduct that is contrary to the

judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the

lawyer may withdraw from the employment.” DR 7-101(A)(1) provided that a

lawyer “shall not intentionally ..

available objectives or methods because of

nonlegal factors is ultimately for the client.... In the event that the client in a

nonadjudicatory matter insists upon a course of conduct that is contrary to the

judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the

lawyer may withdraw from the employment.” DR 7-101(A)(1) provided that a

lawyer “shall not intentionally ... fail to seek the lawful objectives of his client

through reasonably available means permitted by law .... A lawyer does not violate

this Disciplinary Rule, however, by ... avoiding offensive tactics ....”

Paragraph (b) has no counterpart in the former Code.

With regard to paragraph (c), DR 7-101(B)(1) provided that a lawyer may,

“where permissible, under ethical considerations, exercise his professional judgment

to waive or fail to assert a right or position of his client.”

With regard to paragraph (d), DR 7-102(A)(7) provided that a lawyer shall not

“counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.”

DR 7-102(A)(6) provided that a lawyer shall not “participate in the creation or

preservation of evidence when he knows or it is obvious that the evidence is false.”

DR 7-106(A) provided that a lawyer shall not “advise his client to disregard a standing

rule of a tribunal or a ruling of a tribunal ... but he may take appropriate steps in good

faith to test the validity of such rule or ruling.” EC 7-5 stated that a lawyer “should never

encourage or aid his client to commit criminal acts or counsel his client on how to

violate the law and avoid punishment therefor.”

With regard to paragraph (e), Alabama had no counterpart, since in 1974 it had

not adopted the ABA's Model DR 2-110(C)(1)(c), which provided that a lawyer may

withdraw from representation if a client “insists” that the lawyer engage in “conduct

that is illegal or that is prohibited under the Disciplinary Rules.” Alabama had adopted

DR 9-101(C) which provided that “a lawyer shall not state or imp

th regard to paragraph (e), Alabama had no counterpart, since in 1974 it had

not adopted the ABA's Model DR 2-110(C)(1)(c), which provided that a lawyer may

withdraw from representation if a client “insists” that the lawyer engage in “conduct

that is illegal or that is prohibited under the Disciplinary Rules.” Alabama had adopted

DR 9-101(C) which provided that “a lawyer shall not state or imply that he is able to

influence improperly ... any tribunal, legislative body or public official.”

Note from the reporter of decisions: The order amending Rule 1.1, Rule

1.2(c), Rule 4.2, and Rule 4.3, Alabama Rules of Professional Conduct, and amending

Rule 11, Alabama Rules of Civil Procedure, and adopting Rule 87, Alabama Rules of

Civil Procedure, is published in that volume of Alabama Reporter that contains

Alabama cases from So. 3d.