Rule 1.2. SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN

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. Subject to the Rules with respect to Declining or

Terminating Representation (Rule 1.16), 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 representation if the limitation is

reasonable under the circumstances and the client provides

informed consent after consultation. If, after consultation, the client

consents, an attorney may enter a limited appearance on behalf of an

otherwise unrepresented party involved in a court proceeding. A

lawyer who signs a complaint, counterclaim, cross-claim or any

amendment thereto that is filed with the court, may not thereafter

limit representation as provided in this rule, without leave of court.

(d)

A lawyer, who under the auspices of a non-profit organization or a

court-annexed program provides limited representation to a client

without expectation of either the lawyer or the client that the lawyer

will provide continuing representation in the matter, is subject to the

requirements of Rules 1.7, 1.9, 1.10 and 1.11 only if the lawyer is

aware that the representation of the client involves a conflict-of-

interest.

pices of a non-profit organization or a

court-annexed program provides limited representation to a client

without expectation of either the lawyer or the client that the lawyer

will provide continuing representation in the matter, is subject to the

requirements of Rules 1.7, 1.9, 1.10 and 1.11 only if the lawyer is

aware that the representation of the client involves a conflict-of-

interest.

(e)

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), 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.

hether 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).

[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.

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.

Agreements Limiting Scope of Representation

[6]

Both lawyer and client have authority and responsibility to

determine the objectives and means of representation. The scope of services

to be provided by a lawyer may be limited by agreement with the client. In

situations where the lawyer will not be providing limited representation in

court, the limited representation agreement must be reasonable under the

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

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

common and typically uncomplicated legal problem, the lawyer and the client

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

consultation or office visit. Such a limitation, however, will not be reasonable

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

rely

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

common and typically uncomplicated legal problem, the lawyer and the client

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

consultation or office visit. Such a limitation, however, will not be reasonable

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

rely. Although an agreement for 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.

A lawyer’s advice may be based upon the scope of the representation agreed

upon by the lawyer and client, and the client’s representation of the facts.

[6A] While a writing memorializing the agreement is not required, to

the extent a writing can be obtained, it is a better practice to do so for both the

lawyer and the client.

[6B] In situations involving limited representation in court of an

otherwise unrepresented party, an agreement outlining the scope of

representation is required, and a written memorandum of the scope of

representation is recommended. A lawyer providing limited representation in

court proceedings should include in the consultation with the client an

explanation of the risks and benefits of the limited representation. A general

form of the agreement is attached for reference.

[6C] An attorney reasonably may rely on the information provided by

the limited representation client. This rule does not reduce an attorney’s

obligation to provide competent representation, but makes clear the

preparation for the legal matter is limited along with the scope of the

representation.

its of the limited representation. A general

form of the agreement is attached for reference.

[6C] An attorney reasonably may rely on the information provided by

the limited representation client. This rule does not reduce an attorney’s

obligation to provide competent representation, but makes clear the

preparation for the legal matter is limited along with the scope of the

representation.

[7]

Rule 1.2(c) allows the client and lawyer to agree to the

parameters, including time limitations, on the scope of representation, and

allows the attorney to withdraw from pending litigation or otherwise

terminate representation in accordance with the agreement with the client, or

when permitted by the court as set forth in 1.2(c). 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 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.

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.

[7A] Legal service organizations, courts, and various non-profit

organizations have established programs through which lawyers provide

limited legal services—typically advice—that will assist persons with limited

means to address their legal problems without further representation by a

lawyer. In these programs, such as legal advice hotlines, advice-only clinics,

lawyer for the day programs in criminal or civil matters, or pro se counseling

programs, an attorney-client relationship is established, but there is no

expectation that the lawyer’s representation of the client will continue beyond

the limited consultation. It is the purpose of this Rule to provide guidance to

lawyers about their professional responsibilities when serving a client in this

capacity.

[7B] The phrase “is aware” as used in Rule 1.2(d) should be

distinguished from the term “knows” as defined in Rule 1.0: Definitions and

Terminology. “Knows,” according to the definition, means actual knowledge

of the fact in question, which may be inferred from circumstances. In contrast,

“is aware” allows a lawyer, in the limited circumstances described in Rule

1.2(d), to represent clients without risk of a violation of Rules 1.7, 1.9, 1.10

and 1.11, if the lawyer knows, based on reasonable recollection and

information provided by the client in the ordinary course of the consultation,

that the representation does not present a conflict-of-interest. In such a case,

knowledge may not be inferred from circumstances

mited circumstances described in Rule

1.2(d), to represent clients without risk of a violation of Rules 1.7, 1.9, 1.10

and 1.11, if the lawyer knows, based on reasonable recollection and

information provided by the client in the ordinary course of the consultation,

that the representation does not present a conflict-of-interest. In such a case,

knowledge may not be inferred from circumstances. This is because a lawyer

who is representing a client in the circumstances addressed by Rule 1.2(d) is

not able to check systematically for conflicts. A conflict-of-interest that would

otherwise be imputed to a lawyer because of the lawyer’s association with a

firm will not preclude the lawyer from representing a client in a limited

services program. Nor will the lawyer’s participation in such a program

preclude the lawyer’s firm from undertaking or continuing the representation

of clients with interests adverse to a client being represented under the

program’s auspices.

[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.

Criminal, Fraudulent and Prohibited Transactions

[9]

Paragraph (e) 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.

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.

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

special obligations in dealings with a beneficiary.

[12] Paragraph (e) 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 (e)

does not preclude undertaking a criminal defense incident to a general

retainer for legal services to a lawful enterprise. The last clause of paragraph

a beneficiary.

[12] Paragraph (e) 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 (e)

does not preclude undertaking a criminal defense incident to a general

retainer for legal services to a lawful enterprise. The last clause of paragraph

(e) 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)