Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
Rule Text
(a) 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, 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. Subject to the Rules with respect to Declining or Terminating Representation (Rule 1.16), 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 representation if the limitation is reasonable under the circumstances and the client provides informed consent after consultation. If, after consultation, the client consents, an attorney may enter a limited appearance on behalf of an otherwise unrepresented party involved in a court proceeding. A lawyer who signs a complaint, counterclaim, cross-claim or any amendment thereto that is filed with the court, may not thereafter limit representation as provided in this rule, without leave of court.
(d) A lawyer, who under the auspices of a non-profit organization or a court-annexed program provides limited representation to a client without expectation of either the lawyer or the client that the lawyer will provide continuing representation in the matter, is subject to the requirements of Rules 1.7, 1.9, 1.10 and 1.11 only if the lawyer is aware that the representation of the client involves a conflict-of- interest.
(e) 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.
Plain-English Summary (for reference only — not a substitute for the rule text above)
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Committee Notes
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. 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. By the same token, representing a client does not constitute approval of the client’s views or activities.
Agreements Limiting Scope of Representation [6] Both lawyer and client have authority and responsibility to determine the objectives and means of representation. The scope of services to be provided by a lawyer may be limited by agreement with the client. In situations where the lawyer will not be providing limited representation in court, the limited representation agreement must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law and the client’s needs in order to handle a common and typically uncomplicated legal problem, the lawyer and the client may agree that the lawyer’s services will be limited to a brief telephone consultation or office visit. Such a limitation, however, will not be reasonable if the time allotted was not sufficient to yield advice upon which the client can rely. Although an agreement for 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. A lawyer’s advice may be based upon the scope of the representation agreed upon by the lawyer and client, and the client’s representation of the facts.
[6A] While a writing memorializing the agreement is not required, to the extent a writing can be obtained, it is a better practice to do so for both the lawyer and the client.
[6B] In situations involving limited representation in court of an otherwise unrepresented party, an agreement outlining the scope of representation is required, and a written memorandum of the scope of representation is recommended. A lawyer providing limited representation in court proceedings should include in the consultation with the client an explanation of the risks and benefits of the limited representation. A general form of the agreement is attached for reference.
[6C] An attorney reasonably may rely on the information provided by the limited representation client. This rule does not reduce an attorney’s obligation to provide competent representation, but makes clear the preparation for the legal matter is limited along with the scope of the representation.
[7] Rule 1.2(c) allows the client and lawyer to agree to the parameters, including time limitations, on the scope of representation, and allows the attorney to withdraw from pending litigation or otherwise terminate representation in accordance with the agreement with the client, or when permitted by the court as set forth in 1.2(c). 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 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.
[7A] Legal service organizations, courts, and various non-profit organizations have established programs through which lawyers provide limited legal services—typically advice—that will assist persons with limited means to address their legal problems without further representation by a lawyer. In these programs, such as legal advice hotlines, advice-only clinics, lawyer for the day programs in criminal or civil matters, or pro se counseling programs, an attorney-client relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. It is the purpose of this Rule to provide guidance to lawyers about their professional responsibilities when serving a client in this capacity.
[7B] The phrase “is aware” as used in Rule 1.2(d) should be distinguished from the term “knows” as defined in Rule 1.0: Definitions and Terminology. “Knows,” according to the definition, means actual knowledge of the fact in question, which may be inferred from circumstances. In contrast, “is aware” allows a lawyer, in the limited circumstances described in Rule 1.2(d), to represent clients without risk of a violation of Rules 1.7, 1.9, 1.10 and 1.11, if the lawyer knows, based on reasonable recollection and information provided by the client in the ordinary course of the consultation, that the representation does not present a conflict-of-interest. In such a case, knowledge may not be inferred from circumstances. This is because a lawyer who is representing a client in the circumstances addressed by Rule 1.2(d) is not able to check systematically for conflicts. A conflict-of-interest that would otherwise be imputed to a lawyer because of the lawyer’s association with a firm will not preclude the lawyer from representing a client in a limited services program. Nor will the lawyer’s participation in such a program preclude the lawyer’s firm from undertaking or continuing the representation of clients with interests adverse to a client being represented under the program’s auspices.
[8] 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 [9] Paragraph (e) 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.
[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 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.
[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.
[12] Paragraph (e) 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 (e) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph
(e) 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 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)
REPORTER’S NOTES:
Model Rule 1.2 addresses the allocation of authority for decision making between lawyers and clients. The framework of the Rule makes a distinction between “objectives” and “means,” but as a practical matter, there is often overlap between these realms of authority. Generally, a client decides the objectives of representation, while the lawyer is engaged to make educated decisions about the means by which to pursue such.
Paragraph (b) makes clear that representation of a client does not constitute an endorsement of a client’s views. This provision was included to encourage the representation of unpopular clients.
The Task Force recommended the revision of Model Rule 1.2 (2002) to reflect the substance of M. Bar R. 3.4(i), which allows for the limited representation of clients. As described in Comment [7A], legal service organizations, courts, and various non-profit organizations have established programs through which lawyers provide limited legal services—typically advice—that will assist persons with limited means to address their legal problems without further representation by a lawyer. In these programs, such as legal advice hotlines, advice-only clinics, lawyer for the day programs in criminal or civil matters, or pro se counseling programs, an attorney-client relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. It is the purpose of this Rule to provide guidance to lawyers about their professional responsibilities when serving a client in this capacity. Maine Rule of Professional Conduct 6.5 describes the application of the conflict-of-interest rules in the context of such limited representation. (The Task Force acknowledges that the Federal District Court does not allow limited appearances on behalf of clients. Local Rule 83.2(b).)
Rule 1.2 (e) prohibits a lawyer from assisting or advising a client to engage in criminal or fraudulent conduct. Both passive and active assistance is prohibited by this rule. This rule, however, permits lawyer to assist clients in making good-faith determinations of the validity, scope and meaning of the application of a rule or law.
LIMITED REPRESENTATION AGREEMENT
(Used in conjunction with Rule 1.2 the following form shall be sufficient to satisfy the rule. The authorization of this form shall not prevent the use of other forms consistent with this rule.)
To Be Executed in Duplicate Date: , 20 1. The client, , retains the attorney, , to perform limited legal services in the following matter: v. 2. The client seeks the following services from the attorney (indicate by writing "yes" or "no"): a. Legal advice: office visits, telephone calls, fax, mail, e-mail; b. Advice about availability of alternative means to resolving the dispute, including mediation and arbitration; c. Evaluation of client self-diagnosis of the case and advising client about legal rights and responsibilities; d. Guidance and procedural information for filing or serving documents; e. Review pleadings and other documents prepared by client; f. Suggest documents to be prepared; g. Draft pleadings, motions, and other documents; h. Factual investigation: contacting witnesses, public record searches, in- depth interview of client; i. Assistance with computer support programs; j. Legal research and analysis; k. Evaluate settlement options; l. Discovery: interrogatories, depositions, requests for document production; m. Planning for negotiations; n. Planning for court appearances; o. tandby telephone assistance during negotiations or settlement conferences; p. Referring client to expert witnesses, special masters, or other counsel; q. Counseling client about an appeal; r. Procedural assistance with an appeal and assisting with substantive legal argument in an appeal; s. Provide preventive planning and/or schedule legal check-ups: t. Other: 3. The client shall pay the attorney for those limited services as follows: a. Hourly Fee: The current hourly fee charged by the attorney or the attorney's law firm for services under this agreement are as follows: i. Attorney: ii. Associate: iii. Paralegal: iv. Law Clerk:
Unless a different fee arrangement is established in clause b.) of this paragraph, the hourly fee shall be payable at the time of the service. Time will be charged in increments of one- tenth of an hour, rounded off for each particular activity to the nearest one-tenth of an hour. b. Payment from Deposit: For a continuing consulting role, client will pay to attorney a deposit of $ , to be received by attorney on or before , and to be applied against attorney fees and costs incurred by client. This amount will be deposited by attorney in attorney trust account. Client authorizes attorney to withdraw funds from the trust account to pay attorney fees and costs as they are incurred by client. The deposit is refundable. If, at the termination of services under this agreement, the total amount incurred by client for attorney fees and costs is less than the amount of the deposit, the difference will be refunded to client. Any balance due shall be paid within thirty days of the termination of services. c. Costs: Client shall pay attorney out-of-pocket costs incurred in connection with this agreement, including long distance telephone and fax costs, photocopy expense and postage. All costs payable to third parties in connection with client case, including filing fees, investigation fees, deposition fees, and the like shall be paid directly by client. Attorney shall not advance costs to third parties on client behalf. 4. The client understands that the attorney will exercise his or her best judgment while performing the limited legal services set out above, but also recognizes: a. the attorney is not promising any particular outcome. b. the attorney has not made any independent investigation of the facts and is relying entirely on the client limited disclosure of the facts given the duration of the limited services provided, and c. the attorney has no further obligation to the client after completing the above described limited legal services unless and until both attorney and client enter into another written representation agreement. 5. If any dispute between client and attorney arises under this agreement concerning the payment of fees, the client and attorney shall submit the dispute for fee arbitration in accordance with Rule 9(e)-(k) of the Maine Bar Rules. This arbitration shall be binding upon both parties to this agreement.
WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.
Signature of client Signature of attorney