Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer

RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY

BETWEEN CLIENT AND LAWYER

(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

(1) discuss the legal consequences of any proposed course of conduct with a client,

(2) counsel or assist a client to make a good-faith effort to determine the validity, scope,

meaning or application of the law, and

(3) counsel or assist a client in conduct expressly permitted by Illinois law that may violate

or conflict with federal or other law, as long as the lawyer advises the client about that federal

or other law and its potential consequences.

rse of conduct with a client,

(2) counsel or assist a client to make a good-faith effort to determine the validity, scope,

meaning or application of the law, and

(3) counsel or assist a client in conduct expressly permitted by Illinois law that may violate

or conflict with federal or other law, as long as the lawyer advises the client about that federal

or other law and its potential consequences.

(e) After accepting employment on behalf of a client, a lawyer shall not thereafter delegate to

another lawyer not in the lawyer’s firm the responsibility for performing or completing that

employment, without the client’s informed consent.

Adopted July 1, 2009, effective January 1, 2010; amended Oct. 15, 2015, eff. Jan. 1, 2016.

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 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).

[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.

Independence from Client’s Views or Activities

[5] 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

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to abide by the client’s decisions is to be guided by reference to Rule 1.14.

Independence from Client’s Views or Activities

[5] 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.

Agreements Limiting Scope of Representation

[6] 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

tive 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

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of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6, and Supreme Court

Rules 13(c)(6) and 137(e).

Criminal, Fraudulent and Prohibited Transactions

[9] 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] Paragraph (d)(3) was adopted to address the dilemma facing a lawyer in Illinois after the

passage of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act effective

January 1, 2014. The Act expressly permits the cultivation, distribution, and use of marijuana for

medical purposes under the conditions stated in the Act. Conduct permitted by the Act may be

prohibited by the federal Controlled Substances Act, 21 U.S.C

ddress the dilemma facing a lawyer in Illinois after the

passage of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act effective

January 1, 2014. The Act expressly permits the cultivation, distribution, and use of marijuana for

medical purposes under the conditions stated in the Act. Conduct permitted by the Act may be

prohibited by the federal Controlled Substances Act, 21 U.S.C. §§801-904 and other law. The

conflict between state and federal law makes it particularly important to allow a lawyer to provide

legal advice and assistance to a client seeking to engage in conduct permitted by Illinois law. In

providing such advice and assistance, a lawyer shall also advise the client about related federal

law and policy. Paragraph (d)(3) is not restricted in its application to the marijuana law conflict. A

lawyer should be especially careful about counseling or assisting a client in other contexts in

conduct that may violate or conflict with federal, state, or local law.

[11] 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. In such situations, the lawyer should also consider whether

disclosure of information relating to the representation is appropriate. See Rule 1.6(b)

e 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. In such situations, the lawyer should also consider whether

disclosure of information relating to the representation is appropriate. See Rule 1.6(b).

[12] Where the client is a fiduciary, the lawyer may be charged with special obligations in

dealings with a beneficiary.

[13] 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.

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[14] 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).

[15] The prohibition stated in paragraph (e) has existed in Illinois ethics rules and in the prior

Code since 1980. It is intended to curtail abuses that occasionally occur when a lawyer attempts to

transfer complete or substantial responsibility for a matter to an unaffiliated lawyer without the

client’s awareness or consent. The Rule is designed to clarify the lawyer’s obligation to complete

the employment contemplated unless the client gives informed consent to substitution by an

unaffiliated lawyer

ce 1980. It is intended to curtail abuses that occasionally occur when a lawyer attempts to

transfer complete or substantial responsibility for a matter to an unaffiliated lawyer without the

client’s awareness or consent. The Rule is designed to clarify the lawyer’s obligation to complete

the employment contemplated unless the client gives informed consent to substitution by an

unaffiliated lawyer. The Rule is not intended to prohibit lawyers from hiring lawyers outside of

their firm to perform certain services on the client’s or the law firm’s behalf. Nor is it intended to

prevent lawyers from engaging lawyers outside of their firm to stand in for discrete events in

situations such as personal emergencies, illness or schedule conflicts.

Adopted July 1, 2009, effective January 1, 2010; amended June 14, 2013, eff. July 1, 2013; amended

Oct. 15, 2015, eff. Jan. 1, 2016.

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