N.D.R. Prof. Conduct
RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
1 (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's
2 decisions concerning the objectives of representation and, as required by Rule 1.4,
3 shall consult with the client as to the means by which they are to be pursued. A
4 lawyer may take such action on behalf of the client as impliedly authorized to carry
5 out the representation. A lawyer shall abide by a client's decision whether to settle
6 a matter. In a criminal case, the lawyer shall abide by the client's decision, after
7 consultation with the lawyer, as to a plea to be entered, whether to waive jury trial
8 and whether the client will testify.
9 (b) A lawyer's representation of a client, including representation by
10 appointment, does not constitute an endorsement of the client's political, economic,
11 social or moral views or activities.
12 (c) A lawyer may limit the scope of the representation if the client consents
13 in writing after consultation.
14 (d) A lawyer shall not counsel a client to engage, or assist a client, in
15 conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss
16 the legal consequences of any proposed course of conduct with a client and may
17 counsel or assist a client to make a good faith effort to determine the validity,
18 scope, meaning or application of the law.
20 Scope of Representation
21  Paragraph (a) confers upon the client the ultimate authority to determine
22 the purposes to be served by legal representation, within the limits imposed by law
23 and the lawyer's professional obligations. The decisions specified in paragraph (a),
24 such as whether to settle a civil matter, must also be made by the client. See Rule
25 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions.
26 With respect to the means by which the client's objectives are to be pursued, the
27 lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take
28 such action as is impliedly authorized to carry out the representation.
29  On occasion, however, a lawyer and a client may disagree about the
30 means to be used to accomplish the client's objectives. Clients generally defer to
31 the special knowledge and skill of their lawyer with respect to the means to be
32 used to accomplish their objectives, particularly with respect to technical, legal and
33 tactical matters. Conversely, lawyers usually defer to the client regarding such
34 questions as the expense to be incurred and concern for third persons who might be
35 adversely affected. The lawyer should consult with the client and seek a mutually
36 acceptable resolution of any disagreement. If such efforts are unavailing and the
37 lawyer has a fundamental disagreement with the client, the lawyer may withdraw
38 from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve
39 the disagreement by discharging the lawyer. See Rule 1.16(a)(4).
40  At the outset of a representation, the client may authorize the lawyer to
41 take specific action on the client's behalf without further consultation. Absent a
42 material change in circumstances and subject to Rule 1.4, a lawyer may rely on
43 such an advance authorization. The client may, however, revoke such authority at
44 any time.
45  In a case in which the client appears to have limited capacity, the
46 lawyer's duty to abide by the client's decisions is to be guided by reference to Rule
48 Independence From Client's Views or Activities
49  Legal representation should not be denied to people who are unable to
50 afford legal services, or whose cause is controversial or the subject of popular
51 disapproval. By the same token, representing a client does not constitute approval
52 of the client's views or activities.
53 Agreements Limiting Scope of Representation
54  The scope of services to be provided by a lawyer may be limited by
55 agreement with the client or by the terms under which the lawyer's services are
56 made available to the client. Paragraph (c) allows the lawyer to limit the scope of
57 representation if the client consents.
Obtaining the client's consent in
preferred practice. Lack of a writing may make it difficult to prove client
if a dispute arises later. When a lawyer has been retained by an
insurer to represent
60 an insured, for example, the representation may be limited to matters related to the
61 insurance coverage. A limited representation may be appropriate because the client
62 has limited objectives for the representation. In addition, terms upon which
63 representation is undertaken may exclude specific means that might otherwise be
64 used to accomplish the client's objectives. Such limitations may exclude actions
65 that the client thinks are too costly or that the lawyer regards as repugnant or
67  Although an agreement for a limited representation does not exempt a
68 lawyer from the duty to provide competent representation, the limitation is a factor
69 to be considered when determining the legal knowledge, skill, thoroughness and
70 preparation reasonably necessary for the representation. See Rule 1.1.
71  All agreements concerning a lawyer's representation of a client must
72 accord with these Rules and other law. See, e.g., Rules 1.1, 1.8 and 5.6.
73 Criminal, Fraudulent, and Prohibited Transactions
74  Paragraph (d) prohibits a lawyer from knowingly counseling or assisting
75 a client to commit a crime or fraud. The prohibition, however, does not preclude
76 the lawyer from giving an honest opinion about the actual consequences that
77 appear likely to result from a client's conduct. Nor does the fact that a client uses
78 advice in a course of action that is criminal or fraudulent of itself, make a lawyer a
79 party to the course of action. There is a critical distinction between presenting an
80 analysis of legal aspects of questionable conduct and recommending the means by
81 which a crime or fraud might be committed with impunity.
82  When the client's course of action has already begun and is continuing,
83 the lawyer's responsibility is especially delicate. The lawyer is not permitted to
84 reveal the client's wrongdoing, except where required or permitted by Rule 1.6.
85 The lawyer is required to avoid assisting the client, for example, by drafting or
86 delivering documents that the lawyer knows are fraudulent or by suggesting how
87 the wrongdoing might be concealed. A lawyer may not continue assisting a client
88 in conduct that the lawyer originally supposed was legally proper but then
89 discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the
90 representation of the client in the matter. See Rule 1.16(a). In some cases,
91 withdrawal alone might be insufficient. It may be necessary for the lawyer to give
92 notice of the fact of withdrawal and to disaffirm any opinion, document,
93 affirmation or the like. See Rule 4.1.
94  Where the client is a fiduciary, the lawyer may be charged with special
95 obligations in dealings with the beneficiary.
96  Paragraph (d) applies whether or not the defrauded party is a party to
97 the transaction. Hence, a lawyer must not participate in a transaction to effectuate
98 criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude
99 undertaking a criminal defense incident to a general retainer for legal services to a
100 lawful enterprise. The last clause of paragraph (d) recognizes that determining the
101 validity or interpretation of a statute or regulation may require a course of action
102 involving disobedience of the statute or regulation or of the interpretation placed
103 upon it by governmental authorities.
104  If a lawyer comes to know or reasonably should know that a client
105 expects assistance not permitted by these Rules or other law or if the lawyer
106 intends to act contrary to the client's instructions, the lawyer must consult with the
107 client regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5).
108 Reference: Minutes of the Professional Conduct Subcommittee of the
109 Attorney Standards Committee as amended 10/21/83, 02/03/84, 03/16/84,
110 05/23/84, 06/27/84; Minutes of the Joint Committee on Attorney Standards on
111 11/15/02, 02/28/03, 09/25/03, 11/19/04, 02/26/16.