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Attorney E-Newsletter

November 2006

Rule 1.2: Scope Of Representation

Rule 1.2 is less often discussed than some other Rules of Professional Conduct, but its coverage goes to the very heart of the client-lawyer relationship, and it contains some strong guidance for the lawyer of which all lawyers who represent clients should keenly be aware.

Rule 1.2 governs the limits of the lawyer's authority in a representation. Its core principle is the powerful statement that "a lawyer shall abide by a client's decisions concerning the objectives of representation . . ." Decisions as to the objectives of the representation are firmly in the client's hands; however, decisions as to the means to achievement of those objectives often must be made by the lawyer. Most experienced lawyers know that a representation will probably not be successful if the client sees the lawyer is a mere errand runner, charged with carrying out the client's direction on every point of the process. However, the line between means and ends is often difficult to draw.

One area which often causes problems is the decision as to whether to settle a matter. Rule 1.2(a) states flatly, "A lawyer shall abide by a client's decision whether to settle a matter." However, the caselaw in Pennsylvania and the preferences of many courts create strong pressures on the lawyer to get cases settled, and many times the lawyer will know better than the client that the weaknesses of a case and the perils and burdens of litigation point to settlement as being in the client's best interest. Sometimes the lawyer must persuade or even pressure the client to accept a settlement that the client is reluctant to consider. In such situations, however, the lawyer must always be mindful of the client's ultimate authority to make the decision whether to settle, and to communicate the facts, effects, and consequences of the settlement thoroughly to the client, and to be sure that the client understands and accepts that the final decision is his or hers.

Disciplinary Counsel receive many complaints from clients who feel that lawyers settled their cases without their authority, or pressured or misled them into accepting a settlement against their will. Such complaints are evaluated with due respect for the lawyer's duties as counselor and advocate, but counsel should bear in mind that such clients are invariably unhappy about the outcome of the litigation, and tend to transfer their disappointment at the outcome to their perception of the lawyer. For this reason it is essential that the lawyer communicate fully all the considerations that the client should keep in mind when making a decision about the settlement, and make sure that the client understands that the decision to settle is the client's own, and that the decision is made voluntarily.

With regard to representation of criminal defendants, three decisions are specifically reserved to the client: 1) whether to enter a plea; 2) whether to waive jury trial; and 3) whether the client will testify.

Rule 1.2(c) notes that a lawyer may limit the scope of representation, if the limitation is reasonable and the client gives informed consent. The lawyer should be particularly alert to potentially related issues and cases, and should engage the client in frank discussion of the limits of the representation if the lawyer anticipates that the client may expect representation in other matters. Clients tend to think of "my lawyer" as their representative in all matters, and the lawyer should take initiative in heading off these expectations if they appear evident. The mandatory writing stating the basis of the fee, required by RPC 1.5(b), can also be used to establish the parameters of the representation formally.

The theme of communication, consultation, and consent resound throughout the various provisions of Rule 1.2. In this sense Rule 1.2 is closely related to Rule 1.4, which addresses communication with clients. The provision in Rule 1.2(a) that "A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation" also has implications in terms of the confidentiality requirements of Rule 1.6.

The Comments to Rule 1.2 note many intersections with other Rules of Professional Conduct, including Rule 1.1 regarding competence (the lawyer must bear the limits of his or her competence in mind in establishing the scope of the representation), Rule 1.8 regarding special conflict situations, Rule 1.14 regarding clients with diminished capacity, Rule 1.16 regarding situations in which a lawyer may or must withdraw from representation, Rule 4.1 regarding a lawyer's obligations of candor, and Rule 5.6 regarding circumstances in which a lawyer's responsibilities to a client limit his or her ability to agree to accept a restriction on his or her right to practice as part of a settlement of a client controversy. Indeed, limitations imposed by many other Rules of Professional Conduct may go into the decision as to what limits on the representation should be established.

There were numerous changes to Rule 1.2 in the amendments effective January 1, 2005, but these changes did not add or subtract any significant duties. The comments were extensively rewritten. Comment 2 provides useful guidance in determining questions along the borderline between objectives and strategies. Comment 3 notes that "the client may authorize the lawyer to take specific action on the client's behalf without further consultation," and that the lawyer may rely on such authorization. However, the Comment notes that the authorization may be revoked at any time. It is particularly problematic for a lawyer to rely on a provision giving the lawyer authority to settle a case without prior consultation. Whether or not such provisions are legal or ethical, they frequently lead to dissatisfied clients, disciplinary complaints, and attempts to repudiate such settlements before tribunals. Lawyers are wise to consult with the client before settling any matter, even if they believe they have received authority to reach a settlement without such consultation.

CLE Teleconference Pilot Project In Progress

The Supreme Court of Pennsylvania has approved a pilot project for the Continuing Legal Education Board to explore the accreditation of teleconferences as an additional form of distance learning.

The pilot project, which will continue for two years, began October 1, 2006 and will allow lawyers the option of earning CLE credit through participation in pre-approved telephone seminars.

"The CLE Board is pleased and excited that the Supreme Court has authorized the potential expansion of the options to assist lawyers in meeting their CLE requirement," said Judge Thomas M. Golden, board chair. "These activities provide flexibility and scheduling options for learners and increase the convenience for lawyers to participate in meaningful programs of interest."

Participants may earn up to four hours of CLE credit per year in approved distance learning options such as live webcasts, internet on demand programs, podcasts or teleconference programs. One hundred twelve courses have been approved and scheduled for the program. For a list of courses and information on signing up for the credits, visit the Pennsylvania CLE Board's website at this page.

Web address for text-only email users:

http://www.pacle.org/distance_learning/teleconf_FAQ.asp

Tip of the Month

Nervous about your CLE credit status? You can keep tabs on your credits and obligations online with My PACLE at the website of the Supreme Court Continuing Legal Education Board. Visit this page to register for MyPACLE and avoid the mad scramble to get your credits at the end of your compliance period.

Web address for text-only email users:

http://www.pacle.org/crc/MyPACLE.asp