Rule 1.2. Scope of representation

« Rule 1.2. »

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s

decisions concerning the objectives of representation and, as required by

Rule 1.4, shall consult with the client as to the means by which they are to

be pursued. A lawyer may take such action on behalf of the client as is

impliedly authorized to carry out the representation. A lawyer shall abide

by a client’s decision whether to settle 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.

(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.

COMMENT

Allocation of authority between client and lawyer. — [1] Paragraph (a)

confers upon the client the ultimate authority to determine the purposes to

be served by legal representation, within the limits imposed by law and the

lawyer’s professional obligations. The decisions specified in paragraph

a good faith effort to

determine the validity, scope, meaning or application of the law.

COMMENT

Allocation of authority between client and lawyer. — [1] Paragraph (a)

confers upon the client the ultimate authority to determine the purposes to

be served by legal representation, within the limits imposed by law and the

lawyer’s professional obligations. The decisions specified in paragraph

(a), such as whether to settle a civil matter, must also be made by the

client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the

client about such decisions. With respect to the means by which the client’s

objectives are to be pursued, the lawyer shall consult with the

client as required by Rule 1.4(a)(2) and may take such action as is

impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the

means to be used to accomplish the client’s objectives. Clients normally

defer to the special knowledge and skill of their lawyer with respect to the

means to be used to accomplish their objectives, particularly with respect

to technical, legal and tactical matters. Conversely, lawyers usually defer

to the client regarding such questions as the expense to be incurred and

concern for third persons who might be adversely affected. Because of the

varied nature of the matters about which a lawyer and client might disagree

and because the actions in question may implicate the interests of a tribunal

or other persons, this Rule does not prescribe how such disagreements are

to be resolved. Other law, however, may be applicable and should be

consulted by the lawyer. The lawyer should also consult with the client

and seek a mutually acceptable resolution of the disagreement. If such

efforts are unavailing and the lawyer has a fundamental disagreement

with the client, the lawyer may withdraw from the representation. See Rule

1.16(b)(4). Conversely, the client may resolve the disagreement by

discharging the lawyer. See Rule 1.16(a)(3)

nsulted by the lawyer. The lawyer should also consult with the client

and seek a mutually acceptable resolution of the disagreement. If such

efforts are unavailing and the lawyer has a fundamental disagreement

with the client, the lawyer may withdraw from the representation. See Rule

1.16(b)(4). Conversely, the client may resolve the disagreement by

discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer

to take specific action on the client’s behalf without further consultation.

Absent a material change in circumstances and subject to Rule 1.4, a

lawyer may rely on such an advance authorization. The client may,

however, revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished

capacity, the lawyer’s duty to abide by the client’s decisions is to be guided

by reference to Rule 1.14.

[5] 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.

[6] Agreements limiting scope of representation. — The scope of

services to be provided by a lawyer may be limited by agreement with the

client or by the terms under which the lawyer’s services are made

gal 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.

[6] Agreements limiting scope of representation. — The scope of

services to be 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. When a lawyer has been retained by an insurer to

represent an insured, for example, the representation may be limited to

matters related to the insurance coverage. A limited representation may be

appropriate because the client has limited objectives for the representation.

In addition, the terms upon which representation is undertaken may

exclude specific means that might otherwise be used to accomplish the

client’s objectives. Such limitations may exclude actions that the client

thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude

to limit the representation, the limitation must be reasonable under the

circumstances. If, for example, a client’s objective is limited to securing

general information about the law the client needs in order to handle a

common and typically uncomplicated legal problem, the lawyer and client

may agree that the lawyer’s services will be limited to a brief telephone

consultation. Such a limitation, however, would not be reasonable if the

time allotted was not sufficient to yield advice upon which the client could

rely. Although an agreement for a limited representation does not exempt a

lawyer from the duty to provide competent representation, the limitation is

a factor to be considered when determining the legal knowledge, skill,

thoroughness and preparation reasonably necessary for the representation.

See Rule 1.1.

[8] All agreements concerning a lawyer’s representation of a client must

accord with the Rules of Professional Conduct and other law

entation does not exempt a

lawyer from the duty to provide competent representation, the limitation is

a factor to be considered when determining the legal knowledge, skill,

thoroughness and preparation reasonably necessary for the representation.

See Rule 1.1.

[8] All agreements concerning a lawyer’s representation of a client must

accord with the Rules of Professional Conduct and other law. See, e.g.,

Rules 1.1, 1.8 and 5.6.

[9] Criminal, fraudulent and prohibited transactions. — Paragraph (d)

prohibits a lawyer from knowingly counseling or assisting a client to

commit a crime or fraud. This prohibition, however, does not preclude the

lawyer from giving an honest opinion about the actual consequences that

appear likely to result from a client’s conduct. Nor does the fact that a

client uses advice in a course of action that is criminal or fraudulent of

itself make a lawyer a party to the course of action. 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.

[10] When the client’s course of action has already begun and is

continuing, the lawyer’s responsibility is especially delicate. The lawyer is

required to avoid assisting the client, for example, by drafting or

delivering documents that the lawyer knows are fraudulent or by

suggesting how the wrongdoing might be concealed. A lawyer may not

continue assisting a client in conduct that the lawyer originally supposed

was legally proper but then discovers is criminal or fraudulent. The lawyer

must, therefore, withdraw from the representation of the client in the

matter. See Rule 1.16(a). In some cases, withdrawal alone might be

insufficient. It may be necessary for the lawyer to give notice of the fact of

withdrawal and to disaffirm any opinion, document, affirmation or the

like. See Rule 4.1

lly supposed

was legally proper but then discovers is criminal or fraudulent. The lawyer

must, therefore, withdraw from the representation of the client in the

matter. See Rule 1.16(a). In some cases, withdrawal alone might be

insufficient. It may be necessary for the lawyer to give notice of the fact of

withdrawal and to disaffirm any opinion, document, affirmation or the

like. See Rule 4.1.

[11] Where the client is a fiduciary, the lawyer may be charged with

special obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not the defrauded party is a party

to the transaction. Hence, a lawyer must not participate in a transaction to

effectuate criminal or fraudulent avoidance 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.

[13] If a lawyer comes to know or reasonably should know that a client

expects assistance not permitted by the Rules of Professional Conduct or

other law or if the lawyer intends to act contrary to the client’s

instructions, the lawyer must consult with the client regarding the

limitations on the lawyer’s conduct. See Rule 1.4(a)(5).

NOTES TO DECISIONS

Client relations.

— Effective representation.

— Perjury.

Analysis

r reasonably should know that a client

expects assistance not permitted by the Rules of Professional Conduct or

other law or if the lawyer intends to act contrary to the client’s

instructions, the lawyer must consult with the client regarding the

limitations on the lawyer’s conduct. See Rule 1.4(a)(5).

NOTES TO DECISIONS

Client relations.

— Effective representation.

— Perjury.

Analysis

— Scope.

— — Authority.

— — Objectives of representation.

Employment contracts.

Sanctions.

— Reprimand.

— Suspension.

Client relations.

— Effective representation.

Evidence held sufficient to establish a violation of subsection (d) of this

Rule where attorney prepared and filed certain deeds on behalf of a client

in derogation of a final judgment concerning that client. In re Shearin, 721

A.2d 157 (Del. 1998), cert. denied, 526 U.S. 1122, 119 S. Ct. 1776, 143 L.

Ed. 2d 805 (U.S. 1999).

Attorney’s failure to file an underinsured motorist claim on behalf of

the client was in violation of this rule. In re Becker, 788 A.2d 527 (Del.

2001).

Defendant’s motion for postconviction relief pursuant to Super. Ct. Crim.

R. 61 was denied where defendant: (1) failed to show that trial counsel

was ineffective for failing to request an accomplice level of liability jury

instruction pursuant to 11 Del. C. § 274; (2) failed to rebut the

presumption that not requesting an accomplice level of liability instruction

was reasonable, professional trial conduct; (3) failed to adduce a reasonable

probability that, but for the lack of jury instruction, the trial results would

have been different; and (4) personally rejected a plea offering the same

lesser included offenses that a level of liability instruction would have

provided. State v. Dickinson, 2012 Del. Super. LEXIS 380 (Del. Super.

Ct. Aug. 17, 2012), aff’d, 2013 Del. LEXIS 171

(Del. Mar. 28, 2013).

Delay of 18 days in extending a settlement offer did not satisfy Law.

Prof. Conduct R. 1.2. In re Sisk, 54 A.3d 257 (Del. 2012).

nd (4) personally rejected a plea offering the same

lesser included offenses that a level of liability instruction would have

provided. State v. Dickinson, 2012 Del. Super. LEXIS 380 (Del. Super.

Ct. Aug. 17, 2012), aff’d, 2013 Del. LEXIS 171

(Del. Mar. 28, 2013).

Delay of 18 days in extending a settlement offer did not satisfy Law.

Prof. Conduct R. 1.2. In re Sisk, 54 A.3d 257 (Del. 2012).

— Perjury.

Defense counsel’s refusal to cooperate with defendant’s planned perjury

(as was required by Law. Prof. Conduct R. 1.2) did not deprive defendant

of right to counsel or the right to testify truthfully and did not give rise to

a disqualifying conflict of interest. Riley v. State, 867 A.2d 902 (Del.

2004).

— Scope.

— — Authority.

In a matter before the Industrial Accident Board, attorney’s agreeing to

employer’s petition to terminate total disability benefits without his

client’s consent violated subsection (a). In re Maguire, 725 A.2d 417 (Del.

1999).

Defendant’s counsel had no authority to agree to giving of jury charge,

in defendant’s absence, where there was no showing that defendant

expressly waived his right to be present; defendant’s right to be present

was personal and could not be waived by counsel. Bradshaw v. State, 806

A.2d 131 (Del. 2002).

Nothing in the constitution prevented defendant from choosing to have

his fate tried before a judge without a jury even though, in deciding what

was best for himself, defendant followed the guidance of his own wisdom

and rejected the advice of his attorney; professional rule required

defendant’s attorney to abide by his client’s decision to waive trial by jury.

Davis v. State, 809 A.2d 565 (Del. 2002).

Attorney violated Law. R. Prof. Conduct 1.2(a) by failing to consult with

a divorce client about the contents of a petitioner’s answer to respondent’s

counterclaim, signing the client’s name on the document, and filing it with

the Family Court without the client’s approval. In re Pankowski, 947 A.2d

1122 (Del. 2007)

s decision to waive trial by jury.

Davis v. State, 809 A.2d 565 (Del. 2002).

Attorney violated Law. R. Prof. Conduct 1.2(a) by failing to consult with

a divorce client about the contents of a petitioner’s answer to respondent’s

counterclaim, signing the client’s name on the document, and filing it with

the Family Court without the client’s approval. In re Pankowski, 947 A.2d

1122 (Del. 2007).

— — Objectives of representation.

A defendant’s wish to forego further appeals and accept the death penalty,

like other decisions relating to the objectives of litigation, is essentially

that of the client, whose decision the attorney must respect. Red Dog v.

State, 625 A.2d 245 (Del. 1993).

Counsel representing a shareholder class in a derivative suit was not

subject to being disqualified for advocating the adoption of a settlement

proposal to which some members of the class objected, and there was no

violation of Del. Law. R. Prof. Conduct 1.2(a). In re M&F Worldwide

Corp. S’holders Litig., 799 A.2d 1164 (Del. Ch. 2002).

Employment contracts.

Discharge of legal counsel and vice president who was employed as a

licensed professional and who claimed that the action for which she was

discharged was required by her employment contract, but prohibited by

her obligation under the Delaware Rules of Professional Conduct, stated a

claim for breach of at-will employment contract. Shearin v. E.F. Hutton

Group, Inc., 652 A.2d 578 (Del. Ch. 1994).

Sanctions.

— Reprimand.

Where attorney violated Rule 1.2(a), Rule 1.3, Rule 1.4(a) and (b), Rule

1.15(a) and (d), Rule 1.16(b) and (d), and Rule 3.4 (c), attorney agreed to

pay all the costs of the disciplinary proceedings, the costs of the

investigatory audits performed by the Lawyers’ Fund for Client Protection,

the restitution noted in the parties stipulation, and consented to the

imposition of a public reprimand with a public four-year probation with

conditions. In re Solomon, 745 A.2d 874 (Del. 1999).

— Suspension

(d), and Rule 3.4 (c), attorney agreed to

pay all the costs of the disciplinary proceedings, the costs of the

investigatory audits performed by the Lawyers’ Fund for Client Protection,

the restitution noted in the parties stipulation, and consented to the

imposition of a public reprimand with a public four-year probation with

conditions. In re Solomon, 745 A.2d 874 (Del. 1999).

— Suspension.

Attorney, who was on probation for previous violations of the Rules of

Professional Conduct and who violated Law. Prof. Conduct R. 1.1, 1.2(a),

1.4(a), 1.15(a), 8.1, 8.1(b), 8.4(c), and 8.4(d), and Law. Disc. P. R. 7(c),

was suspended from the practice of law in Delaware for 3 years after the

Board on Professional Responsibility found that the attorney’s problems

appeared to be getting worse and included: co-mingling client trust funds;

inadequate bookkeeping and safeguarding of client funds; inadequate

maintenance of books and records; knowingly making false statements of

material fact to the ODC; false representations in Certificates of

Compliance for 3 years; and failure to file corporate tax returns for 3

years. In re Becker, 947 A.2d 1120 (Del. 2008).

Del. Rules of Prof'l Conduct Rule 1.3