Rule 1.2.docx

1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER 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 (communication), shall consult with the client as to how they ar...

1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER 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 (communication), shall consult with the client as to how 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 lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify. COMMENT: Allocation of Authority between Client and Lawyer 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. 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. A lawyer may limit the scope of the representation if the limitation is reasonable and the client gives informed consent. 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: Criminal, Fraudulent, and Prohibited Transactions 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. 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. Therefore, the lawyer must withdraw from the client's representation. 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. Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary. 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 the interpretation placed upon it by governmental authorities. 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 laws 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).