ER 1.2 Scope of Representation

The Standard

A lawyer shall abide by a client’s decisions concerning the objectives of representation, and as required by ER 1.4, shall consult with the client as to the means by which they are to be pursued.

The Limitation

Although the client sets the objectives and consults as to the means, a lawyer may take certain actions that would be impliedly authorized by the representation. Also, a lawyer is not always required to pursue objectives or employ means a client directs. Where a fundamental disagreement between lawyer and client cannot be resolved by communication, the lawyer or client may opt to terminate the representation.


Do I need the client's permission to file pleadings in the case?

You may take whatever action on behalf of the client as is impliedly authorized to carry out the representation, such as filing necessary pleadings.  ER 1.2(a).  If you plan, however, to disclose sensitive or private information about the client in the pleading or motion, the best practice is to discuss your plan in advance with the client.

My client refuses to accept a really great settlement offer in her personal injury case. Can’t I override her decision and accept this settlement offer?

No.  The client retains the ultimate decision whether to settle a matter.  In a criminal case, the lawyer must abide by the client’s decision “as to a plea to be entered, whether to waive jury trial and whether the client will testify.”  ER 1.2(a).

In a civil matter, my client wants me to call an expert witness, which I believe is both unnecessary and poor strategy. I’ve advised client against the expert, but he insists, asserting that he is paying, and he calls the shots. Is he correct?

Clients normally defer to their lawyer regarding technical, legal, and tactical matters. Here, if you are unable to reach a mutually acceptable resolution, you need to decide if you can still provide competent and diligent representation to the client if you abide by his call on the expert. If you feel strongly on this “means” disagreement, you may need to terminate/withdraw. See ER 1.16(b)(4).

I am a staunch conservative. My client wants me to file an action that involves “liberal” ideals. I’m afraid my conservative associates will think I’ve changed sides.

A lawyer’s representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” ER 1.2(b). (If your political views might materially limit your willingness or ability to provide the client with competent and diligent representation in pursuing the client’s objectives, you should evaluate whether you have conflict of interest. See ER 1.7.)

Can I agree to handle only the evidentiary hearing for the client, not the whole family law case?

Yes.  ER 1.2(c) allows you to limit the scope of the representation provided the limitation is reasonable under the circumstances and the client gives informed consent. Make sure to consult the appropriate set of procedural rules for how to do this in litigation. Also make sure that the limitation is clearly spelled out in your retention agreement, which you should ask the client to review and sign.

Can I ghostwrite pleadings for a client?

If it is reasonable to limit the scope of the representation in this way and client gives informed consent, the ethical rules do not prohibit ghostwriting. However, some tribunals may require disclosure of an attorney’s role in assisting pro se clients, and so caution is advised. See Ariz. Ethics Ops. 91-03, 05-06, and 06-03.

My client wants to discuss his ability to engage in certain conduct that might subject him to criminal liability. I’m concerned that by doing so, I might assist him in conduct that’s criminal.

ER 1.2(d) allows a lawyer to discuss the legal consequences of any proposed course of conduct and “to counsel or assist the client in making a good faith effort to determine the validity, scope, meaning or application of the law.” If, however, “a lawyer comes to know or reasonably should know that a client expects assistance” with criminal conduct, “the lawyer must consult with the client regarding the limitations on the lawyer’s conduct.” ER 1.2 cmt. 14. 

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