Rule 1.2. Scope of Representation and Allocation of Authority Be- tween Client and Lawyer

(a) Subject to paragraphs (c), (d), and (e), 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. An

otherwise unrepresented person to whom limited representation is being

provided or has been provided in accordance with this rule is considered to be

unrepresented for purposes of Rules 4.2 and 4.3 unless the opposing lawyer

knows of or has been provided with:

(1) a written notice stating that the lawyer is to communicate only with

the limited representation lawyer as to the subject matter of the limited

representation; or

(2) a written notice of the time period during which the lawyer is to

communicate only with the limited representation lawyer concerning the

subject matter of the limited representation.

(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.

ect matter of the limited representation.

(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.

(e) When a lawyer is appointed to act as a guardian ad litem, the lawyer

shall represent what he or she reasonably believes to be in the best interests

of the individual. The lawyer shall not, therefore, be bound by the individual’s

objectives for the representation. The lawyer shall, however, consult with the

individual, in a manner appropriate to the age and/or abilities of the individual, as to the objectives the lawyer intends to pursue, as well as the means

by which those objectives will be pursued.

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

ion 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.

[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

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] Subsection (c) is intended

to facilitate the provision of unbundled legal services, especially to low-income

clients. “Unbundled” means that a lawyer may agree to perform a limited task

for a client without incurring the responsibility to investigate or consider other

aspects of the client’s matter. 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] If a lawyer assists in drafting a pleading, the document shall include a

statement that the document was prepared with the assistance of counsel and

shall include the name and address of the lawyer who provided the assistance.

Such a statement does not constitute an entry of appearance or otherwise mean

that the lawyer represents the client in the matter beyond assisting in the

preparation of the document(s)

assists in drafting a pleading, the document shall include a

statement that the document was prepared with the assistance of counsel and

shall include the name and address of the lawyer who provided the assistance.

Such a statement does not constitute an entry of appearance or otherwise mean

that the lawyer represents the client in the matter beyond assisting in the

preparation of the document(s).

[8] 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.

[9] 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. [10] 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

r 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.

[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.

[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

h 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.

[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).

Definitional Cross-References

“Fraudulent” See Rule 1.0(e)

“Informed consent” See Rule 1.0(f)

“Knows” See Rule 1.0(g)

“Reasonable” See Rule 1.0(i)