Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

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 offer or accept a settlement, must also be made by the client. See Rule 1.4 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 and may take action impliedly authorized to carry out the representation. 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 PROFESSIONAL CONDUCT Rule 1.2 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). 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 circum- stances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke that authority at any time. In a case in which the client appears to be suffering impaired 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 Legal representation should not be denied to a person 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 The objectives or scope of services provided by a lawyer may be limited by agreement 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 purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. 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 terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent. Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. An agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, although 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. 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 and COMMENT to Rule 1.3, paragraph 3. Criminal, Fraudulent and Prohibited Transactions 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 a lawyer’s advice in a course of action that is criminal or fraudulent does not, of itself, make the 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. But a lawyer must not assist a client in conduct that is criminal or fraudulent when the lawyer knows that the conduct is criminal or fraudulent or when the lawyer chooses to remain deliberately ignorant of this fact. To constitute “deliberate ignorance,” the lawyer’s decision not to investigate must be motivated by the lawyer’s conscious goal of avoiding further knowledge that might confirm the lawyer’s suspicions that the client is engaged in a crime or fraud. This means that a lawyer is not “deliberately ignorant” if the lawyer’s failure to investigate is the result of the lawyer’s honest belief, despite reasons to suspect otherwise, that the client is not using or planning to use the lawyer’s services to accomplish or facilitate a crime or fraud. Likewise, a lawyer does not act with “deliberate ignorance” if the lawyer does undertake a reasonable investigation and, based on this investigation, the lawyer concludes in good faith that the client is not using the lawyer’s services to commit or to further a crime or fraud. The concept of deliberate ignorance differs in important ways from the lesser standards of negligence and recklessness. To constitute deliberate ignorance, the lawyer’s duty of inquiry must be triggered by the lawyer’s awareness of a “high probability” — a high likelihood — that the client is using the lawyer’s services (or planning to use the lawyer’s services) to accomplish or facilitate a crime or fraud. A lawyer is not “deliberately ignorant” if the lawyer simply acts negligently — i.e., if the lawyer fails to perceive a substantial risk of illegal activity that a reasonable lawyer would have perceived. Even when a lawyer reasonably believes that the client is using (or planning to use) the lawyer’s services to accomplish or facilitate a crime or fraud, this reasonable belief, standing alone, does not mean that the lawyer acts with “deliberate ignorance” if the lawyer decides to continue representing the client. In such situations, Rule 1.16(b)(2) declares that a lawyer has the right, but not the duty, to terminate the representation. The lawyer’s decision to continue representing the client does not constitute “deliberate ignorance” of the client’s crime or fraud unless (1) the facts giving rise to the lawyer’s reasonable belief are so compelling that the lawyer is aware of a “high probability” that the client is using the lawyer’s services for illegal purposes, and (2) the lawyer’s failure to investigate further is motivated by the lawyer’s conscious goal of avoiding confirmation of the lawyer’s suspicions. In short, “reasonably believes” is the standard that triggers a lawyer’s right of permissive withdrawal under Rule 1.16(b)(2), while “knowledge” or “deliberate ignorance” is the standard that triggers a duty of mandatory withdrawal under Rule 1.16(a)(1). If a duty of investigation is triggered under paragraph (d) of this Rule, the reasonableness of the lawyer’s investigation will depend on the degree of risk that the client is using or seeking to use the lawyer’s services to commit or further a crime or fraud. In evaluating this level of risk, a lawyer may reasonably consider • the identity of the client (i.e., whether the client is a natural person or an entity — and, if an entity, the identity of the directors and/or beneficial owners of that entity), • the lawyer’s experience and familiarity with the client, • the nature of the legal services that the client is requesting, • the identity and reputation of the jurisdictions involved in the representation (e.g., whether that jurisdiction is known to be linked to money laundering or terrorist financing), and • the identities of the people or entities who are depositing funds into, or who are receiving funds from, the lawyer’s trust account or other accounts in which client funds are held. For further guidance in assessing the risk that a client is using a lawyer’s services to commit or further acts of money laundering or a scheme to finance terrorism, a lawyer may consult resources such as the Financial Action Task Force Guidance for a Risk-Based Approach for Legal Professionals, the American Bar Association’s Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing, A Lawyer’s Guide to Detecting and Preventing Money Laundering (a collaborative publication of the International Bar Association, the American Bar Association, and the Council of Bars and Law Societies of Europe), the Organization for Economic Cooperation and Development’s Due Diligence Guidance for Responsible Business Conduct, and the U.S. Treasury Department’s list of “Specially Designated Nationals and Blocked Persons,” and similar legal resources, as they may be updated and amended. When the client’s criminal or fraudulent course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is not permitted to reveal the client’s wrongdoing, except when permitted by Rule 1.6. However, the lawyer is required to avoid furthering the client’s unlawful purpose—for example, by suggesting how the crime or fraud might be concealed. A lawyer must not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required by Rule 1.16(a)(1)(A), and remedial measures may be required by Rule 4.1. Where the client is a fiduciary, the lawyer may have special duties to a beneficiary. See Rule 4.1. Paragraph (d) of this Rule applies whether or not the defrauded party is a party to the transaction. However, 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 proper 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.