Section 2.2: Scope and Decision-Making Authority
Key Takeaways
- Clients hold sole authority over substantive decisions, including civil settlements, criminal pleas, jury trial waivers, testifying, and appeals.
- Lawyers generally control technical and tactical decisions, such as motion practice, deposition strategy, and witness selection, but must consult with clients.
- Under Rule 2.1, lawyers may and should advise clients on non-legal aspects of a case, including moral, economic, social, and political consequences.
- Lawyers must never assist or counsel clients in criminal or fraudulent conduct, but may explain the legal consequences of proposed actions or help determine the law's validity.
Scope and Decision-Making Authority
The relationship between a client and a lawyer is one of principal and agent. Under Model Rule 1.2, the client and the lawyer share control over the objectives and the means of the representation. A lawyer must respect the client's decisions regarding substantive rights and objectives, while the lawyer generally maintains control over technical, tactical, and procedural means. Additionally, a lawyer acts as an advisor under Rule 2.1, providing candid guidance that goes beyond strict legal doctrine to encompass broader moral, economic, and social considerations.
Division of Authority: Client Objectives vs. Lawyer Means
Model Rule 1.2(a) establishes a fundamental division of authority. The client has the authority to decide the objectives of the representation, and the lawyer must consult with the client as to the means by which they are to be pursued.
Decisions Reserved Exclusively for the Client
The client holds the ultimate authority to make decisions affecting their substantive legal rights. The lawyer cannot make these decisions on the client's behalf without explicit authority. These client-only decisions include:
- Settlement of a Civil Matter: The client has the absolute right to decide whether to accept or reject a settlement offer. A lawyer cannot settle a lawsuit, even if the settlement is extremely favorable and the lawyer believes it is in the client's best interest, without the client's informed consent.
- Plea Bargains in Criminal Cases: The client must decide whether to enter a plea of guilty, not guilty, or nolo contendere (no contest). The lawyer's role is to advise the client on the consequences, but the decision rests solely with the defendant.
- Jury Trial Waivers: The client must decide whether to waive a jury trial and opt for a bench trial in a criminal case.
- Testifying in a Criminal Case: The client has the constitutional right to decide whether to testify in their own defense at a criminal trial. A lawyer cannot force a client to testify, nor can a lawyer prevent a competent client from testifying (subject to rules regarding client perjury under Rule 3.3).
- Filing an Appeal: The client has the authority to decide whether to appeal a court's final judgment or order.
Decisions within the Lawyer's Tactical Authority
In contrast to the core objectives of the representation, the lawyer generally has authority over the technical, legal, and tactical means used to achieve those objectives. These decisions include:
- Procedural and Motion Practice: Which motions to file, when to file them, and how to draft them.
- Discovery Strategy: Which depositions to take, what interrogatories to draft, and what documents to request.
- Trial Tactics: Which witnesses to call (other than the criminal defendant testifying), what questions to ask on cross-examination, and what evidence to present.
- Scheduling Details: Agreeing to reasonable scheduling extensions or postponement requests by opposing counsel that do not prejudice the client's substantive rights.
Although the lawyer has tactical authority, the lawyer must still consult with the client under Rule 1.4(a)(2) regarding the general strategy and means. If a lawyer and client reach an irreconcilable disagreement over the means, the lawyer may withdraw from the representation if the withdrawal can be accomplished without material adverse effect, or if the client insists upon taking action that the lawyer considers repugnant or has a fundamental disagreement with (Rule 1.16(b)). Alternatively, the client may discharge the lawyer.
The Lawyer as Advisor (Rule 2.1)
Under Model Rule 2.1, in representing a client, a lawyer must exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.
This rule recognizes that legal advice cannot be divorced from the human context in which the law operates. A client may be legally permitted to take an action—such as filing a foreclosure lawsuit or asserting a technical statute of limitations defense—but the action may have devastating economic, reputation, or moral consequences. A lawyer is ethically permitted, and often expected, to point out these non-legal factors so the client can make a fully informed decision. The MPRE frequently tests this concept by asking whether a lawyer is subject to discipline for discussing non-legal factors; the answer is that such counseling is entirely proper and encouraged.
Counseling or Assisting Criminal or Fraudulent Conduct (Rule 1.2(d))
A lawyer is a facilitator of the law, not a partner in crime. Under Model Rule 1.2(d), a lawyer must not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.
The Boundary of Permissible Advice
A lawyer must distinguish between assisting a client in wrongdoing and advising a client on the boundaries of the law:
- Permissible: A lawyer may discuss the legal consequences of any proposed course of conduct and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. For example, a lawyer may explain how a tax law is structured, what constitutes tax avoidance versus tax evasion, and how the IRS interprets a specific loophole.
- Impermissible: A lawyer cannot help a client structure transactions to evade taxes, draft fraudulent contracts, or counsel the client on how to conceal assets from creditors.
Handling Ongoing Client Crime or Fraud
If a lawyer discovers that a client's course of action has already begun and is continuing, and the client is using the lawyer's services to perpetrate a crime or fraud, the lawyer cannot continue to assist. The lawyer must withdraw from the representation (mandatory withdrawal under Rule 1.16(a)(1)).
Furthermore, under the "noisy withdrawal" comments (Rule 1.6, Comment 14), the lawyer may withdraw and give notice of the fact of withdrawal, and may also disaffirm any opinion, document, affirmation, or other representation previously made by the lawyer that is being used to assist the fraud. This alerts third parties to the issue without directly violating confidentiality, though in some jurisdictions, direct disclosure is also permitted or required under the exceptions to confidentiality.
A lawyer is representing a defendant charged with felony bank robbery. The prosecution offers a plea agreement under which the defendant would plead guilty to a lesser misdemeanor charge and serve six months of probation. The lawyer is convinced that the prosecution's case is weak and that she can win an acquittal at trial. The client, who is terrified of prison, wants to accept the plea bargain. Which of the following is correct regarding who has the authority to make this decision?
A client visits a lawyer seeking assistance in setting up a series of offshore corporate accounts. During the consultation, the client asks how he can structure these accounts to shield his income from federal taxation in a way that violates federal tax laws, and whether the IRS is likely to audit transactions under a certain threshold. Which of the following best describes the lawyer's ethical obligations?
A lawyer is representing a client in a civil breach of contract lawsuit. During a deposition of the opposing party, the lawyer decides to ask a series of aggressive questions regarding the opponent's financial history. The client believes these questions are too aggressive and instructs the lawyer in writing to refrain from asking any further questions about the opponent's finances. The lawyer believes the questions are legally relevant and crucial to establishing the case. Who has the authority to make this decision?