Rule 1.2. SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY

BETWEEN CLIENT AND LAWYER

(a)

Subject to divisions (c), (d), and (e) of this rule, 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 action on behalf of the client as is impliedly authorized to carry out the

representation. A lawyer does not violate this rule by acceding to requests of opposing

counsel that do not prejudice the rights of the client, being punctual in fulfilling all

professional commitments, avoiding offensive tactics, and treating with courtesy and

consideration all persons involved in the legal process. 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 as to a plea to be entered, whether to waive a jury trial, and whether the

client will testify.

(b)

[RESERVED]

(c)

A lawyer may limit the scope of a new or existing representation if the

limitation is reasonable under the circumstances and communicated to the client,

preferably in writing.

(d)(1) A lawyer shall not counsel a client to engage, or assist a client, in conduct

that the lawyer knows is illegal or fraudulent. A lawyer may discuss the legal

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

a client in making a good faith effort to determine the validity, scope, meaning, or

application of the law.

(2)

A lawyer may counsel or assist a client regarding conduct expressly

permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of

marijuana for medical purposes and any state statutes, rules, orders, or other provisions

implementing the act. In these circumstances, the lawyer shall advise the client regarding

related federal law.

eaning, or

application of the law.

(2)

A lawyer may counsel or assist a client regarding conduct expressly

permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of

marijuana for medical purposes and any state statutes, rules, orders, or other provisions

implementing the act. In these circumstances, the lawyer shall advise the client regarding

related federal law.

(e)

Unless otherwise required by law, a lawyer shall not present, participate in

presenting, or threaten to present criminal charges or professional misconduct allegations

solely to obtain an advantage in a civil matter.

Comment

Allocation of Authority between Client and Lawyer

[1]

Division (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 division (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

lient’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 guided by reference to Rule 1.14.

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 guided by reference to Rule 1.14.

[4A]

Division (a) makes it clear that regardless of the nature of the representation the

lawyer does not breach a duty owed to the client by maintaining a professional and civil attitude

toward all persons involved in the legal process. Specifically, punctuality, the avoidance of

offensive tactics, and the treating of all persons with courtesy are viewed as essential components

of professionalism and civility, and their breach may not be required by the client as part of the

representation.

Independence from Client’s Views or Activities

[5]

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. 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]

[RESERVED]

[7]

Although division (c) affords the lawyer and client substantial latitude in defining

the scope of the representation, any limitation must be reasonable under the circumstances. If, for

he 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]

[RESERVED]

[7]

Although division (c) affords the lawyer and client substantial latitude in defining

the scope of the representation, any limitation must be reasonable under the circumstances. If, for

example, a client’s objective is limited to securing general information about the law that 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 would not be reasonable if the time allotted was not sufficient to yield advice upon

which the client could rely. 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. 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]

Written confirmation of a limitation of a new or existing representation is preferred

and may be any writing that is presented to the client that reflects the limitation, such as a letter or

electronic transmission addressed to the client or a court order. A lawyer may create a form or

checklist that specifies the scope of the client-lawyer relationship and the fees to be charged. An

order of a court appointing a lawyer to represent a client is sufficient to confirm the scope of that

representation.

that is presented to the client that reflects the limitation, such as a letter or

electronic transmission addressed to the client or a court order. A lawyer may create a form or

checklist that specifies the scope of the client-lawyer relationship and the fees to be charged. An

order of a court appointing a lawyer to represent a client is sufficient to confirm the scope of that

representation.

[8]

All agreements concerning a lawyer’s representation of a client must accord with

the Ohio Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.

Illegal, Fraudulent and Prohibited Transactions

[9]

Division (d)(1) prohibits a lawyer from knowingly counseling or assisting a client

to commit an illegal act 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 illegal 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 an illegal act 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 permissible but then discovers is

improper. See Rules 3.3(b) and 4.1(b).

[11]

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

in dealings with a beneficiary.

s 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 permissible but then discovers is

improper. See Rules 3.3(b) and 4.1(b).

[11]

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

in dealings with a beneficiary.

[12]

Division (d)(1) applies whether or not the defrauded party is a party to the

transaction. Hence, a lawyer must not participate in a transaction to effectuate illegal or fraudulent

avoidance of tax liability. Division (d)(1) does not preclude undertaking a criminal defense

incident to a general retainer for legal services to a lawful enterprise. The last clause of division

(d)(1) 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 Ohio 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).

Comparison to former Ohio Code of Professional Responsibility

Rule 1.2 replaces several provisions within Canon 7 of the Code of Professional

Responsibility.

The first sentence of Rule 1.2(a) generally corresponds to EC 7-7 and makes what

previously was advisory into a rule. The second sentence of Rule 1.2(a) states explicitly what is

implied by EC 7-7. The third sentence of Rule 1.2(a) corresponds generally to DR 7-101(A)(1)

and EC 7-10. Rule 1.2(a)(1) and (2) correspond to several sentences in EC 7-7.

Rule 1.2(c) does not correspond to any Disciplinary Rule or Ethical Consideration.

ally corresponds to EC 7-7 and makes what

previously was advisory into a rule. The second sentence of Rule 1.2(a) states explicitly what is

implied by EC 7-7. The third sentence of Rule 1.2(a) corresponds generally to DR 7-101(A)(1)

and EC 7-10. Rule 1.2(a)(1) and (2) correspond to several sentences in EC 7-7.

Rule 1.2(c) does not correspond to any Disciplinary Rule or Ethical Consideration.

The first sentence of Rule 1.2(d)(1) corresponds to DR 7-102(A)(7). The second sentence

of Rule 1.2(d)(1) is similar to EC 7-4.

Rule 1.2(e) is the same as DR 7-105 except for the addition of the prohibition against

threatening “professional misconduct allegations.”

Comparison to ABA Model Rules of Professional Conduct

Rule 1.2(a) is modified slightly from the Model Rule 1.2(a) by the inclusion of the third

sentence, which does not exist in the Model Rules.

Model Rule 1.2(b) has been moved to Comment [5] of Rule 1.2 because the provision is

more appropriately addressed in a comment rather than a black-letter rule.

Rule 1.2(c) differs from Model Rule 1.2(c) in that it requires only that the limitation be

communicated to the client, preferably in writing. The Model Rule requires that the client give

informed consent to the limitation.

Rule 1.2(d)(1) is similar to Model Rule 1.2(d) but differs in two aspects. The Model Rule

language “criminal” was changed to “illegal” in Rule 1.2(d)(1), and Model Rule 1.2(d) was split

into two sentences in 1.2(d)(1).

Rule 1.2(d)(2) does not exist in the Model Rules.

Rule 1.2(e) does not exist in the Model Rules.