Rule 1.02. Scope and Objectives of Representation

RULE 1.02. Scope and Objectives of Representation

(a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a clients decisions:

(1) concerning the objectives and general methods of representation;

(2) whether to accept an offer of settlement of a matter, except as otherwise authorized

by law;

(3) In a criminal case, 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 may limit the scope, objectives and general methods of the representation if the

client consents after consultation.

(c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is

criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course

of conduct with a client and may counsel and represent a client in connection with the making

of a good faith effort to determine the validity, scope, meaning or application of the law.

(d) When a lawyer has confidential information clearly establishing that a client is likely to

commit a criminal or fraudulent act that is likely to result in substantial injury to the financial

interests or property of another, the lawyer shall promptly make reasonable efforts under the

circumstances to dissuade the client from committing the crime or fraud.

(e) When a lawyer has confidential information clearly establishing that the lawyer’s client

has committed a criminal or fraudulent act in the commission of which the lawyer’s services

have been used, the lawyer shall make reasonable efforts under the circumstances to persuade

the client to take corrective action.

the

circumstances to dissuade the client from committing the crime or fraud.

(e) When a lawyer has confidential information clearly establishing that the lawyer’s client

has committed a criminal or fraudulent act in the commission of which the lawyer’s services

have been used, the lawyer shall make reasonable efforts under the circumstances to persuade

the client to take corrective action.

(f) When a lawyer knows that a client expects representation 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.

Comment:

Scope of Representation

1. Both lawyer and client have authority and responsibility in the objectives and means of

representation. The client has ultimate authority to determine the objectives to be served by

legal representation, within the limits imposed by law, the lawyer’s professional obligations,

and the agreed scope of representation. Within those limits, a client also has a right to consult

with the lawyer about the general methods to be used in pursuing those objectives. The lawyer

should assume responsibility for the means by which the client’s objectives are best achieved.

Thus, a lawyer has very broad discretion to determine technical and legal tactics, subject to

the client’s wishes regarding such matters as the expense to be incurred and concern for third

persons who might be adversely affected.

general methods to be used in pursuing those objectives. The lawyer

should assume responsibility for the means by which the client’s objectives are best achieved.

Thus, a lawyer has very broad discretion to determine technical and legal tactics, subject to

the client’s wishes regarding such matters as the expense to be incurred and concern for third

persons who might be adversely affected.

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2. Except where prior communications have made it clear that a particular proposal would be

unacceptable to the client, a lawyer is obligated to communicate any settlement offer to the

client in a civil case; and a lawyer has a comparable responsibility with respect to a proposed

plea bargain in a criminal case.

3. A lawyer should consult with the client concerning any such proposal, and generally it is

for the client to decide whether or not to accept it. This principle is subject to several

exceptions or qualifications. First, in class actions a lawyer may recommend a settlement of

the matter to the court over the objections of named plaintiffs in the case. Second, in

insurance defense cases a lawyer’s ability to implement an insured client’s wishes with

respect to settlement may be qualified by the contractual rights of the insurer under its policy.

Finally, a lawyer’s normal deference to a client’s wishes concerning settlement may be

abrogated if the client has validly relinquished to a third party any rights to pass upon

settlement offers. Whether any such waiver is enforceable is a question largely beyond the

scope of these rules. But see comment 5 below. A lawyer reasonably relying on any of these

exceptions in not implementing a client’s desires concerning settlement is, however, not

subject to discipline under this Rule.

Limited Scope of Representation

4. The scope of representation 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

5 below. A lawyer reasonably relying on any of these

exceptions in not implementing a client’s desires concerning settlement is, however, not

subject to discipline under this Rule.

Limited Scope of Representation

4. The scope of representation 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 objective. Likewise, representation

provided through a legal aid agency may be subject to limitations on the types of cases the

agency handles. Similarly 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

scope within which the representation is undertaken also may exclude specific objectives or

means, such as those that the lawyer or client regards as repugnant or imprudent.

5. An agreement concerning the scope of representation must accord with the Texas

Disciplinary 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 1.01, or to surrender the right

to terminate the lawyer’s services or the right to settle or continue litigation that the lawyer

might wish to handle differently.

6. Unless the representation is terminated as provided in Rule 1.16, a lawyer should carry

through to conclusion all matters undertaken for a client. If a lawyer’s representation is

limited to a specific matter or matters, the relationship terminates when the matter has been

resolved. If a lawyer has represented a client over a substantial period in a variety of matters,

the client may sometimes assume that the lawyer will continue to serve on a continuing basis

unless the lawyer gives notice to the contrary

matters undertaken for a client. If a lawyer’s representation is

limited to a specific matter or matters, the relationship terminates when the matter has been

resolved. If a lawyer has represented a client over a substantial period in a variety of matters,

the client may sometimes assume that the lawyer will continue to serve on a continuing basis

unless the lawyer gives notice to the contrary. Doubt about whether a client-lawyer

relationship still exists should be clarified by the lawyer, preferably in writing, so that the

client will not mistakenly suppose the lawyer is looking after the client’s affairs when the

lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative

proceeding that produced a result adverse to the client but has not been specifically instructed

concerning pursuit of an appeal, the lawyer should advise the client of the possibility of

appeal before relinquishing responsibility for the matter.

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Criminal, Fraudulent and Prohibited Transactions

7. 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.

8. When a client’s course of action has already begun and is continuing, the lawyer’s

responsibility is especially delicate. The lawyer may not reveal the client’s wrongdoing,

except as permitted or required by Rule 1.05. However, the lawyer also must avoid furthering

the client’s unlawful purpose, for example, by suggesting how it might be concealed

r fraud might be committed with impunity.

8. When a client’s course of action has already begun and is continuing, the lawyer’s

responsibility is especially delicate. The lawyer may not reveal the client’s wrongdoing,

except as permitted or required by Rule 1.05. However, the lawyer also must avoid furthering

the client’s unlawful 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. See Rule 1.16(a)(1)

9. Paragraph (c) is violated when a lawyer accepts a general retainer for legal services to an

enterprise known to be unlawful. Paragraph (c) does not, however, preclude undertaking a

criminal defense incident to a general retainer for legal services to a lawful enterprise.

10. The last clause of paragraph (c) 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.

11. Paragraph (d) requires a lawyer in certain instances to use reasonable efforts to dissuade a

client from committing a crime or fraud. If the services of the lawyer were used by the client

in committing a crime or fraud paragraph (e) requires the lawyer to use reasonable efforts to

persuade the client to take corrective action.