Rule 1.2 Scope of Representation

Scope of Representation.

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

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

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

Within those limits, a client also has a right to consult with the lawyer about the means to be

used in pursuing those objectives. At the same time, a lawyer is not required to pursue

objectives or employ means simply because a client may wish that the lawyer do so. A clear

distinction between objectives and means sometimes cannot be drawn, and in many cases the

client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer

should assume responsibility for technical and legal tactical issues, but should defer to the client

regarding such questions as the expense to be incurred and concern for third persons who might

be adversely affected.

In a case in which the client appears to be suffering mental disability, 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 people who are unable to afford legal services or

whose cause is controversial or the subject of popular disapproval. By the same token,

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.

Services Limited in Objectives or Means.

The objectives or scope of services 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 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.

An agreement concerning the scope of representation must accord with the 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 1.1, or to surrender the right to terminate the lawyer’s services or the

right to settle litigation that the lawyer might wish to continue.

Reasonable Under the Circumstances.

Factors to weigh in deciding whether the limitation is reasonable under the circumstances

according to the facts communicated to the attorney include the apparent capacity of the person

to proceed effectively with the limited scope assistance given the complexity and type of matter

and other self-help resources available. For example, some self-represented persons may seek

objectives that are inconsistent with an attorney’s obligation under the Rules of Professional

Conduct, or assert claims or defenses pursuant to pleadings or motions that would, if signed by

an attorney, violate MCR 1.109. Attorneys must be reasonably diligent to ensure a limited scope

representation does not advance improper objectives, and the commentary should help inform

lawyers of these considerations.

Illegal, 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 advice in a course of action that is

illegal 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 illegal or fraudulent conduct. There is a critical

distinction between presenting an analysis of legal aspects of questionable conduct and

recommending the means by which an illegal act 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 not permitted to reveal the client’s

wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid

furthering the 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 illegal or fraudulent. Withdrawal from the representation, therefore, may be

required.

Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings

with a beneficiary.

Paragraph (c) applies whether or not the defrauded party is a party to the transaction. Hence, a

lawyer should not participate in a sham transaction; for example, a transaction to effectuate

criminal or fraudulent escape of tax liability. Paragraph (c) does not preclude undertaking a

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